' ALI HUSSAIN QAZILBASH, J.-Nisar Ahmad alias Pahar Baba aged 52/53 years, Manzoor Ahmad alias Chatti aged '2/33 years and Zulfiqar alias Zulfi aged 42/43 years sons of Abdul Khaliq residents of Mohallah Kakikhelan Peshawar City the three appellants stand convicted under section 302 read with section 34, P. P. C. For the murder of Fazal Nabi alias Gulji. While Zulfiqar alias Zulfi has been awarded the death penalty, rest of the two appellants have been sentenced to imprisonment for life. They were tried and convicted as above by the learned Additional Sessions Judge II Peshawar vide his judgment dated 15-10-1983.
2. The three appellants have filed the present appeal against their conviction while the learned Additional Sessions Judge has made a reference for the confirmation of the death sentence imposed on Zulfiqar alias Zulfi appellant.
3. This judgment will dispose of both the appeal and the reference.
4. The case of the prosecution is that Fazal Nabi deceased and his brother. Mustafa were employed in the shop of Rahim Bakhsh, Baker (Tandoor Wala) situated in Bazar Kalan Peshawar City. On 22nd of Decembei, 1981 at 11 in the morning while Mustafa complainant was busy near the oven his deceased brother Fazal Nabi alias Gulji was sitting on the plank of the shop when in the meanwhile Zulfiqar alias Zulfi, Manzoor Ahmad and Nisar Ahmad sons of Abdul Khaliq and Zia Ahmad son of Mukhtiar Ahmad came there duly armed. Nisar Ahmad accused raised a Lalkara asking his co- accused to kill Fazal Nabi alias Gulji and on this Zulfiqar fired a shot with a Tamacha with which Fazal Nabi got hit and fell down. All the remaining accused then fired with their respective Tamachas and then decamped. The occurrence was witnessed by Bashir Ahmad son of Ghulam Ahmad, Salahuddin, Ashiq Hussain who were present on the spot opposite to the shop of the complainant over a `Takhtai and were having green tea.
' The motive given is that sometime back Fazal Nabi deceased and Jehanzeb had fired at Zia Ahmad and the present occurrence was to take vengeance. S.00n after the occurrence the complainant Mustafa with the assistance of other persons named above lifted the deceased, put him in a 'Rickshaw' and was carried by his brother Mustafa to the Casualty Department of the Lady Reading Hospital. Fazal Nabi was hit on his head and was not in a position to make any statement therefore the report was made by Mustafa his brother which was taken down as a Murasila at 1130 hours which is Exh. P. A./1. This Murasila was taken down by Muzahir Shah A. S. I. P. W. 5 who was present in the Lady Reading Hospital. He then sent the same to the Police Station for the registration of the case under section 307/34, P. P. C. He also prepared the injury sheet of Fazal Nabi then injured which is Exh. P. M/1 and referred him for his medical examination. On the next day Fazal Nabi expired and thus information was communicated to the Police Station and his inquest report Exh. P. M./2 was also prepared by the above witness. The witness then banded over the dead body for post-mortem examination.
5. Adam Khan A. S. I. P. W. 9 on receipt of the F. I. R. Started investigation of the case, he proceeded to the spot, the complainant and the witnesses called and on their pointation inspected the spot and prepared the site plan Exh, P. B. Correctly with all its notes. From the spot he recovered Chadar Charkhana Exh. P. 8, a piece of dried bread Exh. P. 9 and took the same into possession vide recovery memo. Exh. P. R/1. On the next day on receipt of the information about the death of Fazal Nabi the section of law was changed from section 307, P. P. C. To section 302, P. P. C. The witness also 'took into possession the shirt Exh. P. 1, Shalwar P. 2, Banyan P. 3 and woollen Banyan P. 4, one Jacket Exh. P. 5, another warm jacket P. 6, all stained with blood and a bottle containing a lead bullet P. 7 recovered from the dead body of the deceased at the time of post-mortem examination which was brought by Irshad F. C. From the mortuary. The clothes were made into parcel vide Exh.
P. C. He recorded statements of the P. Ws. And also got recorded statements of Bashi'. Ahmad, Ashiq Hussain, Salahuddin, Bedar Khan and Pervez from the Illaqa Magistrate. The clothes of the deceased were sent to the Chemical Examiner whose report is Exh. P. W. 9/1. The accused were absconding therefore their warrants of arrest under section 204, Cr P. C. And proclamations under section 87, Cr. P. C. Were obtained and handed over to Amir Laiq P. W. 1 who searched the accused in their Mohallah and surrounding areas but they were not available and were hiding, therefore he returned the warrants unnerved with his reports which are Exhs. P. W. 1/1, P. W. 1/2 and P. W. 1/3 respectively. Proclamation under section 87, Cr. P. C. Was also effected by him and his reports are Exhs. P. W. 1/4, P. W. 1/5 and P. W. 1/6. After the completion of the investigation Adam Khan P. W. 9 submitted the challan against the accused for their trial.
6. At the trial the prosecution in support of its case produced as many as ten witnesses. Manzoor Ahmad and Nisar Ahmad in their statements under section 342, Cr. P. C. Have accepted their inter se relationship as brothers and also that Zia Ahmad their co-accused was their nephew. They also admitted that Fazal Nabi alias Gulji deceased and onb Jehanzeb had fired at Zia Ahmad 7/8 months prior to the occurrence and that both were charged for the offence. They have denied the charge of firing at Fazal Nabi alias Gulji on 22-12-1981 at 11.00 a.m. And also denied their abscondence and stated that as soon as they learnt about false charge they surrendered themselves. As to the charge against them by the witnesses both of them deposed that the witnesses have charged them because of previous enmity and due to their party-men and hand in gloves with Malik Ghulam Jafar Jalil, Nisar, lmdad, Saadat and Bashir sons of Ghulam Ahmad who are equally inimical to them because of blood feud. In their statement they deposed that they are innocent and falsely charged The deceased was not of good character, he and Abdul Jalil and Bashir ran a gambling den. He had committed murders including that of An anullah for which he had been charged. They have been charged due to enmity and this fact would also be evident from the fact that during the pendency of this case, Zia Ahmad accused was murdered by Nisar, Sadiq, Imdad and Mustafa, the complainant of this case. Mustafa was an absconder in that case, got interim bail, absented himself and his bail was not confirmed. Thereafter he again became an absconder and then got an interim bail from the High Court. He has learnt that Nisar accused of that case has also now obtained interim pre-arrest bail from the Court of Sessions.
7. Zulfiqar alias Zulfi in his statement under section 342, Cr. P. C. Accepted the relationship of Manzoor Ahmad, Nisar Ahmad and Zia Ahmad. He also admitted that Fazal Nabi deceased and one Jehanzeb were involved in firing and injuring Zia Ahmad on 20-6-1981. He denied the charge of murder of Fazal Nabi alias Gtilji. About his abscondence till 23rd of March, 1982 he stated that he did not abscond and as soon as he learnt about the false charge he approached the Court of Sessions for pre-arrest bail which was granted but the same was not confirmed and thus he surrendered to the Court. About the case against him he deposed that the witnesses are inimical to him because of the blood feud and has falsely been implicated. He also adopted the statement given by Nisar Ahmad and Manzoor Ahmad.
8. The trial, however, culminated in the impugned order.
9. Dr. Akbar Said was examined by the trial Court as P. W.
10. He was C. M.
0. In Lady Reading Hospital, Peshawar. He examined the deceased on 22-12-1981 at 11-30 a. m. In an injured condition and found the following on his person :-
(1) The patient was unconscious.
(2);,There was a fire arm entrance wound on right side forehead. Raring marks present. Wound was bleeding. Size was .x ' He was advised X-Ray of skull and was admitted in male Surgical-A Ward. Weapon used was firearm. Duration was within six hours. The report of this P. W. In this respect is Exh. P. M/4.
' After the expiry of Fazal Nabi deceased on 23-12-1981 at 9-30 a. m. The same doctor conducted the post-mortem examination on the dead body of Fazal Nabi and found the above injuries on external examination. On internal examination he found the following :- ' There was fracture of the skull, membrane of the brain was fractured. Brain matters damaged and stomach was full. The doctor opined that the cause of death was head injury and damage to brain matters caused by -firearm. He stated that the bullet was recovered from the dead body of the deceased which was handed over to the A. S. I. On duty along with the clothes of the deceased and P. M. Report and that probable time between injury and death was 18 hours while between death and post-mortem examination about two hours.
10. The learned counsel for the parties heard. Mr. S. M: Zafar learned counsel for the appellants has vehemently decried the findings of the learned trial Court in convicting and sentencing Zulfiqar alias Zulfi accused to death and the remaining accused to life imprisonment. He contended that the entire case of the prosecution is based on the evidence of highly interested, partisan and chance witnesses which have gone absolutely uncorroborated in that neither the medical evidence supports the ocular version given in the case nor abscondence of the accused after the alleged occurrence has been proved by the prosecution. Reliance in this respect was placed by him on a number of authorities reported in Muhammad Shaft v. The State (1) Shah Nawaz v. Lal Khan (2), Mahmood Khan v. Ahmad and 2 others (3), Zarshad v. Bahadur (4), Sikandar v. The State (5), Mumtazuddin v. The State (6), Muhammad Afsar v. The Crown (7). Allah Dad v. .State (8), Machia and 2 others v. State (9), Liaqat All v. Masai Khan (10), Abdul Hameed v. State (11), Muhammaa Latif v. State (12), Muhammad Hanif v. State (13) and Talib Hussain and 2 others v.
State (14).
11. As against the learned counsel for the appellants Syed Ibne Ali the learned Additional Advocate- General has with the same vehemence supported the judgment. Of the trial Court and submitted that the ocular witnesses though interested and partisan have given consistent version of the occurrence and their stand is fully fortified by the medical evidence, the abscondence of all the accused and the motive. He further submitted that it was a broad daylight occurrence which had taken place in the main Bazar, the report whereof was made with such promptitude which completely eliminates the question of deliberation and consultation. Reliance by him was placed on State v. Nuran Shah (15), Beekho v. State (16), Safdar v. State (17), Gul Hassan and another v.
State (18), Rasool Bakhsh v. State (19) and Nazir and others v. State (20).
12. We have given our careful consideration to the arguments advanced by the learned counsel for the parties for and against the appeal.
13. The occurrence is alleged to have taken place on 22-12-1981 at 11 in the morning in the shop owned by one Rahim Bakhsh a baker (Tandoor Wala) where the complainant Mustafa who appeared at the trial as P. W. 7 and his brother Fazal Nabi alias Gulji deceased were employed.
According to the prosecution Mustafa P. W. 7 was busy in making breads and his brother Fazal Nabi deceased was sitting on a Takhta at the opening of the shop at a distance of two paces from the complainant, when in the meantime all the four accused duly armed with Tamachas
(1) 1974 P Cr. L J Note 10 at p. 7 (2) 1972 SCMR 286
(3) 1972 SCMR 620 (4) 1972 SCMR 644
(5) 1975 P Cr. L J 1229 (6) PLD 1978 SC 114
(7) PLD 1954 FC 170 (8) PLD 1978 SC I
(9) PLD 1976 SC 695 (10) 1980 SCM R 208
(11) NLR 1982 A C 611 (12) 1979 P Cr. L J Note 149 at p. 95
(13) 1980 P Cr. L J 345 (14) 1982 P Cr. L J 635
(15) PLD 1967 Pesh. 274 (16) 197311 Cr. L J 896
(17) 1973 P Cr. L J 402 (18) PLD 1969 SC 89
(19) P L 1970 SC,316 (20) PLD 1962 SC 269 ' came to the spot. Nisar accused raised a Lalkara to kill Fazal Nabi alias Gulji. On this Zulfiqar fired a shot with his pistol at Fazal Nabi injuring him on his head and the rest of the accused fired one shot each in the air. This occurrence was being watched by Salahuddin P. W. 8, Ashiq Hussain (not examined being an absconder in another case), Bashir Ahmad and Pervez Ahmed (both not examined as unnecessary). Salahuddin P. W. 8 and the persons mentioned above assisted Mustafa in lifting his brother Fazal Nabi then in injured condition, placed him in a Rickshaw which drove the complainant and Fazal Nabi to the Lady Reading Hospital. On reaching the Casualty Department of the Lady Reading Hospital since Fazal Nabi was unconscious the report was lodged by Mustafa within half an hour of the occurrence.
14. In this case it can hardly be disputed that both the belligerent parties are after the blood of each other. Mustafa P. W. 7 is a highly interested witness being the brother of the deceased and an accused of the murder of Zia Ahmad deceased accused, Salahuddin is a partisan and in a way a chance witness ; that the ocular evidence as to the killing of Fazal Nabi is supported by the medical evidence in that the deceased had only one injury on his person, a bullet having been recovered from the wound which has charring. There is, however, dispute as to the role given to each of the three accused by the prosecution and about the abscondence of all the accused after the occurrence.
15. We would now examine the case in the light of the above. It is discernible from the case of the prosecution that there are two sets of accused the one who had fired a fatal shot at the deceased and the other who had fired a shot each in the air. In the first instance we would like to deal with the case of the accused, namely, Manzoor Ahmad, his brother Nisar Ahmad and their nephew Zia.
Ahmad (killed during the trial and case abated against him). All of them are alleged to be armed with Tamachas and of them Nisar Ahmad is alleged to have raised a Lalkara asking his co- accused including Zulfiqar to kill Fazal Nabi deceased. According to the F. I. R. At the raising of the Lalkara by Nisar, Zulfiqar accused at once fired at Fazal Nabi hitting him and felling him down and the rest of the three accused fiied each shot and made their escape good. At the trial, however though both Mustafa and Salahuddin P. Ws. Are consistent in attributing Lalkara to Nisar Ahmad and a fatal shot to Zulfiqar but they have made a marked departure as to firing by the other three accused in that, at the trial both of the witnesses deposed that the three accused fired a shot each in the air. Though the learned Additional Advocate-General after repeatedly reading the F. I. R. And the statements ic of these P. Ws. Submitted. With vehemence that there is no difference in the versions given in the F. I. R. And at the trial as to the, firing by the three accused but we do not find ourselves inclined to accept that the version.Given in the F. I. R. And at the trial as to the firing by the three accused carry the same meaning and import. The F. I. R. Has been lodged by Mustafa P. W. 7 and the manner in which it has been constructed it clearly suggests that no sooner Nisar Ahmad raised the Lalkara all the accused fired at the deceased who was sitting on the plank of his shop and it was to the bad luck of Zulfiqar whose shot proved effective. .16. Salahuddin P. W. 8 whose statement under section 161, Cr. P. C. Was recorded the same day and under section 164, Cr. P. C. Two days after the occurrence with which he was confronted has stated in dear words in the above statements that Nisar Ahmad, Manzoor Ahmad and Zia Ahmad also fired one shot each with which none was injured. Similarly in the site plan which was prepared on the day of occurrence at the instance of the eye-witnesses the fact that the three accused fired in the air has note been mentioned. The change in the version at the trial was obviously necessitated because had the three accused also fired at the deceased who were within 4 to 7 feet from the deceased he would have definitely received more injuries on his person or for the matter of that Mustafa P. W. Who was then at a distance of 8 to 10 feet from the three accused would have also been hit but it is not so. Further that the case of the prosecution is that the deceased at the relevant time was sitting at the opening of the shop on the plank. Had he been fired at by the three accused also then some of the spent bullets would have found their places either on the walls of the shop or must have left some sort of marks on the walls of the shop. Since the alleged firing by the three appellants did not leave any mark on3c, the person of the deceased or his brother or anywhere on the walls of the shop, the prosecution twisted the matter and firing in air was introduced at the trial. Further if it is assumed for the sake of arguments that the three accused who were armed with pistols had fired in the air then the empties must have been found in front of the shop of the deceased but none was found or taken possession of. The role of Lalkail'attributed to Nisar also seems to be far from truth, in that, had there been any Lalkara the deceased would have definitely tried to jump for his life and would have not behaved like a sitting duck at the place in the site plan at the crucial time.
17. As to the ascendance of the three accused we think, as the record stands, no serious allot had been made by the police to locate the whereabouts of the three accused. The warrants of arrest and proclamation were entrusted to Amir Laiq P. W. 1 on 23rd and 27th December, 1981 respectively.
He returned the warrants the same day that is 23rd December, 1981 after doing the needful and so was the proclamation the same day that is 27th December, 1981. We wonder if this is the proper way of making a search of an accused person. This manner of search does not inspire confidence.
Even otherwise the record shows that after some days of the occurrence the three accused had remained on interim bail for some days and then they were granted bail after arrest and the application of the complainant for the cancellation of the bail of the three accused was rejected by this Court on 17-4-1982. This shows that the three accused did not flout the law and the argument of the learned Additional Advocate-General that the three accused had absconded after the occurrence which showed their guilty conscience falls to the ground.
18. From the above analysis we can say without any apprehension that the ocular version furnished by Mustafa and Salahuddin P. Ws. In so far as the allegation of firing by the three accused is concerned, has not been corroborated by any circumstantial evidence. It seems to be an act of one man and as the parties are locked in blood feud therefore the E complainant has widened the net to enrobe as many people as possible from the side of the accused. We, therefore discard the evidence of the two so-called eye-witnesses as far Nisar Ahmad and Manzoor are concerned and by so holding the application of section 23, P. P. C. Also fails.
19. The prosecution has thus failed to bring home the charge to Nisar Ahmad and Manzoor Ahmad, their conviction and sentences are set aside and they are acquitted. They should be released forthwith if not required in any other case.
20. Now we are left with the case of Zulfiqar alias Zulfi who'is charged with the murder of Fazal Nabi alias Gulji.
21. The ocular evidence in his case too has been furnished by the same set, of witnesses that is, Mustafa P. W. 7 and Salahuddin P. W. 8 and Mr. S. M. Zafar's emphasis was that undoubtedly the two eyewitnesses have falsely implicated Nisar, Manzoor and Zia (now dead) for firing at the deceased, therefore, the testimony of the same set of witnesses will also become subject to reasonable doubt and as such be discarded as against Zulfiqar accused, moreso, when there is no corroboration.
22. The above proposition, we are afraid, in view of PLD 1970 SC 13, would hardly be applicable in this case. There is no doubt that the ocular version is furnished by Mustafa P. W. 7 a highly interested witness and Salahuddin P. W. 8 a partisan and let us say a chance witness but their evidence cannot be ignored altogether because of their respective G attributes specially when the eye-version account given by them is fully supported by other circumstantial evidence. We have examined in depth the version of the occurrence given by these two P. Ws. As against Zulfiqar. It definitely stands on a different footing from the one given by them against Manzoor etc. The occurrence took place at 11 in the morning and the report was made within half an hour by Mustafa P. W.
7. He along-with his deceased brother ran a "Tandoor", therefore his presence at that hour in the winter season was but natural. The defence has miserably failed to. Bring any material on the record to create any doubt about his presence at the spot at the relevant time. He has charged Zulfiqar in very unambiguous words for having fired a fatal shot at his brother. At the trial he has faithfully stuck to his report in charging Zulfiqar accused and deposed that the deceased was fired at from a close distance, as a result of which he was injured. In the F. I. R. As well as at the trial he has shown the presence of Salahuddin P. W.
8. The statement of Mustafa P. W. Has been fully corroborated on all material points by the eye- account given by Salahuddin P. W.
8. As for the accusation against Zulfiqar the defence has not been able to bring any contradiction or inconsistency in the versions of the above P. Ws. We are conscious of the fact that both these P.
Ws. Suffer from certain disqualifications but as has been said earlier their statements cannot be ignored because the same are supported by very strong circumstantial evidence in the shape of medical evidence and motive.
23. It is in the statement of Mustafa P. W. 7 that his brother was fired at by Zulfiqar accused with a Tamacha from a very close range. The/ fact that the deceased was fired at with a Tamacha from a close range is) fully supported by the medical evidence in that Dr. Akbar Said who examined the deceased for his injuries found a firearm entrance wound on the right side forehead. The dimension of the wound given by him was i" x I which carried a charring. The doctor also recovered a bullet from the wound of the deceased.
24. Mr. S. M. Zafar the learned counsel for the accused has questioned the medical evidence by asserting that in the site plan the deceased hi's been shown at a distance of four feet from the accused and from such a distance if the deceased had been fired upon his wound could not have charring, because charring could occur if the deceased had been fired at with a pistol from a distance of six inches. This contention would, however, not prevail because at point No, 3 at the relevant time the accused has been shown to be standing only. A fire from a pistol is usually made when the assailant extends his full arm towards his target. The length of a normal arm is nearly there feet and if the length of a pistol which is normally eight inches is added to the length of the arm then the distance in this case between the pistol and the target would be reduced only to four inches which is within the charring range. In view of the above there is no contradiction between the site plan and the medical evidence so far as the distance between the1 assailant and the deceased is. Concerned.
25. Another circumstance which supports the statements of the two P. Ws. Is the motive to kill Fazal Nabi by the accused. Both the parties are headstrong and a number of criminal cases are pending against each other. Only six months prior to the occurrence Fazal Nabi deceased and one Jehanzeb were charged for firing at and injuring Zia Ahmad an accused in this case (now dead).
Therefore there was a very strong motive at the accused end to either kill or injure the deceased.
26. Mr. S. M. Zafar also half-heartedly submitted that a tendency has developed in this part of the country where sometimes real culprit is not charged, though account is squared up with him at the opportune moment outside the Court and instead a close relation is charged and case is so tailored that an innocent person is got punished through process of law. He submitted may be it was Zia who had tired at the deceased a fatal shot but was intentionally not given the effective role by the complainant, to be dealt with properly at the opportune moment and instead effective role has been attributed to Zulfiqar. He submitted Zia has already been killed. This, however, did not appeal to our mind because in the first instance it would be very far-fetched proposition and secondly there is nothing on the record from the side of the defence to that end.
27. The view that we take in the matter is that the prosecution has been able to bring home the charge of murder to Zufiqar alias Zulfi accused.) We thus maintain the conviction and sentence imposed upon him by the learned trial Court. The death sentence is confirmed and the reference is answered accordingly.. With the above modification the appeal is dismissed.