1. SALAHUDDIN ARMED, J.-These two appeals by special leave are from an order of the erstwhile High Court of West Pakistan, Lahore, maintaining the conviction and confirming the sentence of death passed on appellant Phulail Khan under section 302 of the Pakistan Penal Code and setting aside the order of acquittal of appellant Shah Wali of the charge under section 302, P. P. C. And ordering his retrial.
2. Leave was really granted in the case of Shah Wali to examine whether the High Court acted on correct principles as enunciated by the Privy Council in the case of Sheo Shorup v. The Emperor (AIR 1934 P C 2.), and by this Court in the case of Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan, (PLD 1964 SC 422) while interfering with the said order of acquittal. Leave to appellant Phulail Khan was granted because leave had been granted to appellant Shah Wali, both having been implicated in the same occurrence.
3. The facts of the case may briefly be stated thus: P. W. 10 Umar Gul and his brother deceased Abdul Shakoor were residents of Jubba Khatak, District Peshawar,. They had come to Gujrat along with their donkeys, and had obtained from Mir Hastam Khan a `Theka' (contract) for removing earth.
4. This entailed removing earth from Nali Masoom Shah Jahangir and throwing it on Purana Jalalpur Jattan Road, about 2 furlongs off.
5. On the 4th of August 1966, they had started working in execution of the Theka along with P. W. 11, Muhammad Rafique and P. W. 12, Fazal Shah at 5 o'clock in the morning. At about 1-30 p.m.
6. Deceased Abdul Shakoor took his meal, and sat down on the bund near the Nali for taking rest. The two appellants, who are closely related to each other, and are, also residents of Jubba Khatak, emerged from the contiguous guava orchard, each of them armed with a pistol, and both fired at Abdul Shakoor in quick succession, and injured him. P. Ws. Umar Gul, Mohammad Rafique and Fazal Shah attempted to apprehend the assailants but they disappeared into the said orchard, and made good their escape. Abdul Shakoor succumbed to his injuries at the spot. The motive for the murder is that about 8/9 years ago appellant Phulial Khan had unsuccessfully intruded into the privacy of-the-house--of the deceased wherein hi, wife was sleeping. Since then the two parties became inimical to each other, and deceased Abdul Shakoor had been on the look out for an opportunity to wreak vengeance. Abdul Shakoor got the opportunity about a. Month before the occurrence of murder, anti he avenged himself by removing the Dopatta of the wife of appellant Phulail from her person.
7. A first information report having been duly made soon after the occurrence, P. W. 13, S. H. O. Nabi Bakhsh visited the place of occurrence and took preliminary steps and seized blood-stained earth as per memo. Exh. P. C. And five empty bullet cases of '32 bore, Exhs. P/1 to P/5 as per memo. Exh. P.
8. B. The seizures were witnessed by P. W. 10, Umar Gul and P. W. 12, Fazal Shah. The statements of these two witnesses were recorded at the spot by the S. H. O. P. W. 13.
9. Appellant Phulail was a Sepahi attached to Y1. P., Bahawaipur and he was arrested from his Unit on 8th August 1966. Appellant Shah Wali was arrested froth a Dak Bungalow at Peshawar on 24- 9-.1966.
10. The autopsy on the dead body of deceased Abdul Shakoor was conducted by P. W. 1, Dr. Ghulam Sarwar on 5-8-1966, at 11-05 a. m., and the following injuries were found thereon:
(1) A. Lacerated wound with margins inverted and no blackening, tattooing or scortching around, 1/4" x 1/4" on the back of the left chest, 2 --" 'to the right and down of left nipple-wound of entry.
11. B. Lacerated wound with margins everted and no blackening, tattooing or scortching around, 1/2' x 1/2" on the back of the right chest lower part-wound of exit.
(2) A. Lacerated wound with margins inverted and no blackening, tattooing or scortching around 1/4"x 1/4" on the right abdomen, 3 -- " below and down of umbilicus-wound of entry.
12. B. A lacerated wound with margins everted and no blackening, tattooing or scortching around 1/2" x 1/2" on the right buttock ischio rectal region-wound of exit.
(3) A. A lacerated wound with margins inverted and blackening, tattooing or scortching around, 1/4" x 1/4" on the front inner part lower part right thigh-wound of entry.
13. B. Lacerated wound with margins everted and no blackening, tattooing or scortching around 1/2" x 1/2" on the back inner lower part of right thigh-wound of exit.
14. The doctor was of the opinion that the injuries had been caused by firearm, and that death was due to shock and haemorrhage from laceration of heart and lungs, resulting from injury No. 1, and perforation of small and large intestines from injury No. 2, and that both these injuries were sufficient to cause death in the ordinary course of nature individually and collectively.
15. Both the appellants denied the prosecution allegations and pleaded not guilty. It is admitted that appellant Shah Wali was the paternal cousin of appellant Phulail Khan, and that a sister of Shah Wali had been married to the younger brother of Phulail Khan. Phulail Khan pleaded alibi and his defence is that due to enmity with P. W. Umar Gul the former has been falsely implicated by the latter. It has also been stated that the deceased had other enemies and he might have been murdered by someone of them. Shah Wali's defence is that he has been falsely implicated due to his relationship with Phulail. The appellants led no evidence on their behalf.
16. We take up Appeal No. 100 of 1970 of Phulail Khan first. Khan Abdul Qayyum Khan, Advocate, has contended on behalf of the appellant that upon the evidence the prosecution case against the appellant has not been proved beyond any reasonable doubt.
17. The case tests upon ocular evidence as furnished by three witnesses, viz. P. W. 10, Umar Gut and P.
18. W. 12, Fazal Shah, brother and uncle respectively, of the deceased, and P. W. 11, Mohammad Rafique.
19. The evidence of these witnesses has been generally assailed on the ground that it is inconsistent with the medical evidence, because, although the P. Ws. Said that the deceased had been fired at from a close range the doctor did not find any blackening, tattooing or scortching around the injuries. According to P. Ws. 10 and 11 the assailants fired from a distance of 8/10 paces and 4/5 paces, respectively. One pace is equal to three feet. The doctor who does not appear to be a fire- arm expert, has not been asked whether firing from the aforesaid distance does leave any blackening, tattooing or scortching marks around the injuries. All the three witnesses have consistently said that they saw the appellants firing at the deceased with pistols. Their evidence have been corroborated by the medical evidence that the stomach of the deceased was full of semi-digested food, as well as by the recovery of five empty bullet cases of .32 bore pistol from the place of occurrence. This recovery has been found by the High Court to have been satisfactorily proved by the Station House Officer, P. W. 13, Nabi Bakhsh, and P. W. Umar Gut, a witness to the seizure. The trial Court disregarded the recovery as not genuine on the ground that it was not mentioned in the inquest report. P. W. 13, who had seized the bullet cases was not asked about this omission. We do not think that the High Court acted without jurisdiction in disagreeing with the opinion of the trial Court in this respect.
20. The motive for the murder has also been proved and this might well furnish another piece of evidence corroborating the eye-witnesses.
21. Of the three eye-witnesses P. W. 11, Mohammad Rafique is neither related to any party nor has he any enmity with any of the accused persons. It has been strenuously contended that he is not as disinterested as he is believed to be, because, he had worked with the deceased for a total period of two years. He also S stated before the Police that he had worked with P. W. UmarGut (brother of the deceased) for a period of 8/10 years. The 5 witness has denied having made this statement.
22. Before the committing Court the witness is alleged to have stated that since the occurrence he had been living with the complainant party. This statement, too, has been denied by him. His evidence before the committing Court has not been brought on the record under section 288, Cr. P.
23. C. The statements of the witness before the Police or the committing Court are not substantive evidence, and cannot be relied on as such. The evidence of this witness discloses that he was a labourer, and had been working with several people including the deceased at different times. The High Court did not consider him to be a partisan witness, and we see no reason to differ from this view. All the three witnesses have been relied on by both the Court and in our opinion quite rightly.
24. Besides, as we have noticed already, their evidence have received ample support from other reliable evidence.
25. We are unable to accept the contention that the motive for the offence as alleged by the prosecution has not been proved in its entirety. The motive has been mentioned in the first Information Report by P. W. 11, Umar Gut and he has deposed to it at the trial. Enmity between the complainant . Party and appellant Phulail is an admitted fact.
26. On the question of sentence it has been contended that about 4 years have elapsed since the appellant's conviction and the imposition of sentence of death on him. He has thus been under grave mental agony. Arguments have also been advanced that the deceased gave grave provocation to the appellant by having removed the dopatta from the person of the wife of the former. The first ground does not appeal to us. The second ground has no reasonable basis. The prosecution evidence that has been believed by both the Courts show that it was the appellant who had first given provocation to the deceased. The High Court however, has also accepted the dopatta incident and this the Court was entitled to do.
27. We accordingly see no reason to interfere with the conviction and sentence of appellant Phulail Khan.
28. We now take up Appeal No. 101 of 1970, arising out of the order of the High Court setting aside the order of acquittal of Shah Wali.
29. While acquitting him the trial Court sought to distinguish his case from that of appellant Phulail Khan as follows : "Regarding Shah Wali I feel that he has been implicated for his relationship with Phulail Khan. The medical evidence as discussed above shows that Abdul Shakoor had received only three fire shots.
30. Had there been two assailants armed with pistols, the victim must have had received a good number of injuries. It has been never alleged that at any time prior tothe occurrence Shah Wali had ever expressed that he was feeling grudge -against-Abdul' Shakoor or his family. It is in cross--- examination of Shah Nazar Inspector Police (P. W. 5) that Ayub Khatak, who was running the Dak Bungalow, was the brother of one Said Wali and that he had never inquired as to how Shah Wali was present in the Dak Bungalow. A suggestion was put to the witness that Shah Wali accused was actually the servant of Said Wali contractor but the witness had expressed ignorance in this behalf.
31. I feel that Shah Wali might be present in the Dak Bungalow without having any intention to conceal himself there."
32. The High Court had no difficulty in rejecting the distinction based as it was either on mere conjecture or on grounds which under the circumstances of the case cannot be called reasonable.
33. In the absence, however, of any motive on the part of Shah Wali to commit the murder the High Court might have felt some difficulty in interfering with the order of acquittal.
34. On our part we feel that he should not be retried, having regard to the considerable time that has intervened since the date of occurrence, i.e. The 4th August 1965, as well as since the date of his acquittal by the trial Court, i.e., 13th December 1967, and also in view of the fact that he has been in custody under the shadow of impending retrial on the murder charge for about four years. Besides it is not unlikely that the witnesses may not be available and the retrial may turn out to be an exercise in futility.
35. The appeal of Phulail Khan is dismissed.
36. SAJJAD AHMAD, J:-I agree.
37. M. R. KHAN, J.-I agree.
38. HAMOODUR RAHMAN, C. J.-I agree with the orders proposed to be made.