1. ANWARUL HAQ, J.-The two appellants, Shamaher and Abdur Rehman, were convicted under section 302/34 of the Pakistan Penal Code by the learned Additional Sessions Judge at Peshawar and sentenced to death for the murder of bahadur Sher, a paternal cousin of Aurangzeb (P. W. 12).
2. In appeal, a Division Bench of the Peshawar High Court has maintained their convic--tions and has also confirmed the sentence of death passed against the appellant, Shamsher. However, in the case of Abdur Rehman the sentence has been reduced to transportation for life for the reason that he was hardly fourteen years of age at the time of the commission of the crime.
3. The incident was alleged to have taken place at 1 p.m. On 2-8-69 at the bus-stand close to the village Abadi of Tehkalbala, a few miles from Peshawar City. The deceased accompanied by his cousin, Aurangzeb (P. W. 12) arid Said Rehman (P. W. 13) had gone to the District Courts in Peshawar that morning for the purpose of standing surety for Said Rehman's nephew, Gul Rehman (P. W. 15), who was in police custody on account of being involved in a fight with an Inspector of the Government Transport Service. Gul Rehman was released at about 11-45 a.m. Under the orders of a Magistrate. One Majid also stood surety along with the deceased. Thereafter, Gul Rehman went back to the Police Station East Cantt. In connection with some telephone call, whereas the deceased, Aurangzeb and Said Rehman boarded a bus for returning to their village.
4. At the bus-stop opposite the Peshawar Cantt. Railway Station, the two appellants as well as appellant Shamsher's son, Jan Rose, who is still absconding, also got into the same bus. The absconder and both the appellants were armed with rifles. At the Tehkalbala bus-stop the deceased, the witnesses as well as the accused persons got down. As they proceeded to the Kacha Road leading to their village they came across Abdul Sattar (P. W 14) and a man named Makbali. Jan Rose suddenly shouted a challenge and fired a shot at the deceased with his rifle. The deceased was hit and fell down. The two appellants also fired shots at the deceased with their rifles. Having thus finished Bahadur Sher, the three accused persons forcibly stopped a car and escaped in the direction of Jamrud.
5. Leaving Said Rehman with the dead body, Aurangzeb pro--ceeded to Police Station Tehkalbala, a distance of two miles, by a bus and reported the incident at 2 p.m. The Investigating Officer, Sub- Inspector Ali Jaffar (P. W. 16) recovered from the spot 3 empties of 303 bore, 4 empties of .12 bore and 1 live cartridge of .32 bore.
6. The appellant Shamsher was arrested on 8-8-69 and Abdul Rehman on 24-8-69 while Jan Rose has still not become available. On a search of Abdul Rehman's Hujra, Sub-Inspector Pordil Khan (P.
7. W. 7) was able to recover two rifles along with bando--liers containing 47 and 48 cartridges respectively, but these rifles were found to belong to the village defence organization. The rifles and the crime empties recovered from the spot were sent for examination to the Forensic Science Laboratory, Peshawar, but the Director, Mr. Muhammad Ashraf Malik (P. W. 6), was not able to express any definite opinion whether the 3 empties had been fired from any of the rifles recovered from the accused.
8. The post-mortem examination as conducted by Dr. Muhammad Iqbal (P. W. 1), revealed that there were 4 bullet entrance wounds and 4 corresponding exit wounds of different sizes on the dead body of deceased Bahadur Sher, thus suggesting that different weapons might have been used.
9. The motive for the crime was that one Roo Khan, a maternal uncle of the deceased Bahadur Sher had been murdered, arid in that connection the appellant, Abdul Rehman's father Yaqub, along with his servants, was tried under the Criminal Law Amend--ment Act and sentenced to undergo rigorous imprisonment for a period of fourteen years. Yaqub's revision petition had been dismissed by the Commissioner, Peshawar Division, only a day before the present occurrence. The deceased had been pursuing the case against Yaqub and his servants.
10. In support of its case the prosecution placed reliance on the ocular evidence of Aurangzeb (P. W.
11. 12), Said Rehman (P. W. 13) and Abdul Sattar (P. W. 14), as well as the recoveries of the crime empties and the medical evidence. The learned trial Judge decided not to rely on the testimony of Said Rehman and Abdul Sattar. He considered that Said Rehman was inimical towards the appellants, as his cousin Abdul Sattar (not to be confused with P. W. Abdul Sattar) had been involved in a firing incident with appellant Abdul Rehman's father Yaqub ; and Abdul Sattar was not only closely related to the deceased but was olio a chance witness who had not been able to satisfactorily explain his presence at the spot at the relevant time. However, the learned trial Judge felt satisfied that full reliance could be placed on the testimony of Aurangzeb who was no doubt related to the deceased but had no motive to falsely implicate the appellants.
12. The High Court has endorsed the view of evidence taken by the learned Additional Sessions Judge, and has given additional reasons for placing reliance on the evidence of Aurangzeb by observing that this witness had in his report to the police, which was promptly lodged, described precisely the manner in which the deceased was shot and had given exact details about the seat of each individual injury cased to the deceased. The learned Judges have added that :---- "When Aurangzeb went and lodged a report---the post-mortem had not yet been conducted on the dead body of Bahadur Sher, nor there was any Expert present at the spot to furnish Aurangzeb with the details which he gave in his report to the police. This is intrinsic evidence to prove the claim of Aurangzeb that he saw the occurrence."
13. Leave was granted in this case to examine the contentions that the Courts below were in error in thinking that Aurangzeb could be implicitly relied upon, as in reaching this conclusion they had overlooked the fact that he was closely related to the deceased ; that the corroboration provided by Gul Rehman (P. W. 15) regarding his presence with the deceased did not come from an independent source ; and that in any case the High Court was clearly in error in observing that Aurangzeb had precisely indicated in the first information report the scat of each injury inflicted on the deceased by the assailants, as in fact the F. I. R. Did not contain any such details.
14. The learned Advocate-General, appearing for the State, doer; not contest the finding of the Courts below regarding the reliability or witnesses Said Rehman and Abdul Sattar, and also coneedes that the first information, lodged by the witness, Aurangzeb, does not contain exact details about the seat of each individual injury sustained by the deceased at the hands of his assailants. A perusal of the F. I. R. Shows that Aurangzeb had merely stated that :- "Jan Rose, son of Shamsher, fired the first shot, on Subedar Bahadur Sher which hit him, and then Shamsher, son of Nauroze; and Abdur Rehman, son of Yaqub, aforementioned, also fired successive shots on Bahadur Sher, and on receiving these shots Bahadur Sher fell down on the ground, and died at the spot."
15. It will be seen, therefore, that the High Court was in error in thinking that Aurangzeb had given a precise description of the' injuries sustained by the deceased and that such a description without the aid of post-mortem or any other Expert could serve as intrinsic evidence to prove the claim of Aurangzeb that he had seen the occurrence.
16. However, the matter does not end here. Although the additional reason given by the High Court for placing reliance on the testimony of Aurangzeb has been found to be untenable, the question still remains whether the trial Court as well as the High Court were justified in accepting Aurangzeb's evidence as to the identity of assailants.
17. In this connection the first thing to be noticed is that although Aurangzeb is a paternal cousin of the deceased Bahadur Sher, yet he does not appear to have any motive whatsoever to falsely implicate the two appellants and the absconder in this crime. It has to be remembered that the previous incident was between the maternal uncle of Bahadur Sher and appellant Abdur Rehman's father Yaqub, showing thereby that Aurangzeb was not directly connected with that dispute, he being related to the deceased from the paternal side. The two appellants are of course related to each other, Abdur Rehman being the son of the Phuphizad brother of Shamsher and the absconder Jan Rose being the son of Shamsher. Abdur Rehman being a young lad of 14 years at the relevant time, it would be natural for his father's relations to help him in taking revenge from the deceased in the circumstances, I am inclined to agree with the Courts below that although Aurangzeb is related to the deceased, yet he is not inimical towards the appellants and his evidence can be relied upon if otherwise found to be in order and acceptable.
18. It is common knowledge that villagers do usually accompany their friends or relations while attending Courts at the district or tehsil headquarters, and therefore, there was nothing unusual in Aurangzeb accompanying the deceased to the District Courts at Peshawar for the purpose of standing surety for Gul Rehman. Even if Gul Rahman's evidence regarding Aurangzeb's presence along with the deceased at the District Courts is not taken into account as providing corroboration, owing to the reason that Gul Rehman is a nephew of Said Rahman whose evidence has been rejected by the Courts below, and also for the additional reason that Gut Rahman was beholden to the deceased for having stood surety for him, Aurangzeb's presence at the spot would appear to be confirmed by the fact that he reported the matter promptly at Police Station Tehkalbala after covering a distance of two miles by bus. If indeed Aurangzeb had not been present with the deceased, there is no explanation on the record as to how he was fetched from the village so promptly, apprised of the details of the incident as well as off' the visit of the deceased to the District Courts at Peshawar that morning, and persuaded to implicate the two appellants and the absconder. There is no room for holding that the report made by Aurangzeb was a result of any deliberation or consultation with the enemies of the appellants.
19. As regards Aurangzeb's account of the incident itself, it seems to me that the medical evidence lends support thereto by showing that the deceased was hit by at least four effective shots out of which two entrance wounds were of different dimensions, whereas the remaining two were of equal dimensions, thus showing that three weapons might have been employed. It is true that the dimensions of the entrance and exit wounds would depend not only on the kind of weapon used for firing the bullets, but also on other factors, yet the apparent difference in the dimensions of the entrance wounds found on the body of the deceased appears to me to confirm the ocular account given by Aurangzeb. This evidence also shows that at least one of the assailants must have fired more than once.
20. There has been some argument at the Bar as to the effect and value of the recovery of bullet empties from the spot. As already stated three empties were of .303 bore, 4 empties of .12 bore and one live cartridge of .32 bore. The Ballistic Expert was not able to express any definite opinion as to whether the three empties of .303 bore had been fired from the rifles recovered, from the hujra of appellant Abdur Rahman. The recoveries are, therefore, not directly relevant for connecting the appellants with the crime, but they do show that at least three rifle shots were fired. As the deceased had received four entrance bullet wounds, it is reasonable to think that the fourth empty was not ejected by the assailants. As regards the live cartridge, I share the view of the High Court that this is of not much significance in an area where most people are carrying arms arid ammunition freely. The presence of the four empties of .12 bore has not been specifically explained by the prosecution, nor were any questions asked in this behalf by the defence. It is possible, however, that more shots than four might have been fired by the assailants. The recital in the first information report and the statements made by Aurangzeb at the trial do not necessarily limit the number of shots fired to four.
21. It was contended by Mr. Manzoor Qadir, the learned counsel appearing for the appellants, that even if Aurangzeb's testimony is believed, there was nothing, at any rate, in evidence of pre concert on the part of the appellants and, therefore, section 34 of the Pakistan Penal Code could not be invoked in this case. The learned counsel submitted that the challenge or lalkara attributed to the absconder Jan Rose appeared to be an exaggeration, and that the deceased must have died on receiving the first shot from the absconder, with the consequence that the appellants who fired after the absconder could not be held responsible for causing the death of the deceased.
22. The existence of formation of a common intention within the meaning of section 34 of the Pakistan Penal Code is not generally susceptible of direct proof, and has to be inferred from the attendant circumstances of the crime. As observed in Rasool Bakhsh v. The State (PLD1964SG143) common intention can be formed spontaneously at the spur of the moment. Now, in the case before us, the evidence is that the appellants as well as the absconder fired at the deceased in quick succession, thus showing unmistakably that they were acting in furtherance of their common intention to cause the death of the deceased. The con--tention that the deceased must have died on receiving the first shot from the absconder and, therefore, the two appellants only shot at a dead body and without incurring any liability, cannot he accepted, firstly for the reason that there is no evidence that the deceased died at once on receiving the first shot and was not alive even for a few seconds, before the second and the third shots bit him; and secondly, because the appellants would be constructively liable under section 34 of the Pakistan Penal Code even for the consequences incurred by the first shot.
23. It was next contended by the learned counsel for the appel--lants that the record of the Magistrate's Court relating to the bail application of the witness, Gul Rehman, not having been summoned, and Gul Rehman not having returned to the village along with the deceased, some doubt is left as to the veracity of this part of the case. I regret I see no merit in this submission, as Gul Rehman's evidence on this point was not seriously challenged in cross-examination ; and in any case the material fact is not the presence of the deceased at the District Courts but at the spot where he was murdered. There is no dispute as to the place where the deceased was done to death. The relevance of Gul Rehman's evidence was in fact more for the purpose of showing Aurangzeb's presence with the deceased, and not for proving the various movements of the deceased prior to the murder. The omission of the prosecution to call for the record of the Magistrate's Court in this behalf does not, therefore, appear to have any bearing upon the fate of the case.
24. After considering all the facts and circumstances of the case, namely, that it was a daylight occurrence on a busy thoroughfare, that the report was made promptly by Aurangzeb without having any opportunity for consultations and deliberations, and that the appellants had the motive to commit the crime and Aurangzeb had no motive or enmity to falsely implicate them, I am satisfied that Aurangzeb's testimony could be safely relied upon as regards the identity of the assailants and the manner in which the assault was launched. The medical evidence also lends support to the eye-witness account as regards the number of assailants and the weapons employed. I would accordingly maintain the conviction recorded against the appellants by the trial Court and upheld by the High Court.
25. As regards the sentence, the High Court has already given the benefit of his age to the appellant Abdur Rahman. In the case of the second appellant Shamsher, I see no extenuating circumstance to justify the imposition of the lesser penalty. As a result, I would dismiss the appeal.
26. SAJJAD AHMAD, J.--With profound respect, I beg to differ from my learned brother, Anwarul Haq J., in the decision of this appeal. In my opinion, a serious doubt besmears the veracity of the prosecution case, of which the benefit must go to the accused appellants, necessitating their acquittal.
27. The facts of the prosecution case are elaborately stated in the judgment of my learned brother.
28. The deceased Bahadur Sher was shot dead in a crowded locality at 1 p.m. Near the bus-stand of Tehkalbala, a few miles outside Peshawar city. He sustained 4 bullet entrance injuries and corresponding exit wounds. The occurrence was reported by P. W. Aurangzeb at 2 p.m. At the Tehkal Police Station, which is situated at a distance of 2 miles from the scene of occurrence.
29. Although the incident was witnessed by several persons, known and unknown (as stated by P. W.
30. Aurangzeb in the First Information Report), the prosecution case was made to rest on the ocular testimony of P. Ws. Aurangzeb, Said Rahman and Abdul Sattar. The last two have been disbelieved by the Courts below for very cogent grounds and the learned Advocate General, who appeared before us for the State, did not take any exception to the rejection of their testimony. However, P . W.
31. Aurangzeb's evidence has found acceptance with the trial Court as well as the High Court to sustain the conviction of the appel--lants. The main reason that has weighed with the learned trial Judge is that although Aurangzeb is related to the deceased, he is not shown to be inimical towards the appellants. Also, the fact that it was he who lodged the report within an hour of the occurrence shows that he had witnessed it. In placing reliance on Aurangzeb as an eye-witness, the learned Judges in the High Court have imported an imaginary argument. It is said that because he had given precise details of the injuries-on the body of the deceased in the F. I. R., before it was medically known where these injuries were, he could not have done so unless he was a faithful eye-witness of the actual happening. This argu--ment has been found to be without any basis, as no details of the injuries of the deceased are described in the F. I. R. It seems that the learned Judges fell into this error on some impression without actually checking the F. I. R. P. W.
32. Aurangzeb is admittedly a close relation of the deceased, and his evidence, therefore, has, of necessity, to be subjected to a very close scrutiny, there being no corroborative circumstance to support it. The reason that he did not bear a direct enmity against the appellants, does not, in my opinion, upgrade his testimony. As a close relation of the deceased, he could not have remained absolutely unaffected by the former's enmity with the appellants, and his evidence, therefore, cannot be put at par with that of an independent witness with no predilection in favour of the prosecution and no bias against the accused persons.
33. As already stated above, in the circumstances of the case, Aurangzeb's testimony requires a very cautious and a close scrutiny. His claim that he accompanied the deceased from the village for the bail of P. W. Gul Rahman and returned with him after this was done, stands merely on his own word supported by the interested testimony of P. W. Gul Rahman, who deposed to have seen him with the deceased in the premises of the Court on the day of occurrence. In cross-examination, Aurangzeb was unable to say who was the other surety for Gul Rahman, and who were the other co-villagers who had accompanied them to Peshawar. He did nothing whatsoever in connection with the mission that had taken him to Peshawar as the companion of the deceased. True that he did make the First Information Report within an hour of the occurrence, if the timings as stated therein are to be taken for granted, but this does not per se establish that he had witnessed the occurrence, and was giving a truthful account of the same. He could have made the report within that time even if he had got news of the murder in his village Tehkalbala, which is situated at a distance of only 2 furlongs from the spot.
34. In the F. I. R., he stated that the appellants and the absconder Janroz, all armed with topaks, travelled to Tehkalbala by the same bus by which he, the deceased and Said Rahman had come.
35. As soon as they alighted from the bus and just when the bus departed for its next stop, the accused resorted to firing. The first shot was fired by the absconder, followed by the appellants, as a result of which the deceased fell down on the ground.
36. At the trial, Aurangzeb stated that they had gone on to the kacha road, which runs parallel to the G.
37. T. Road at a distance of 20 paces from the bus-stand when the accused were seen coming behind.
38. Janroz shouted a lalkara that the unconcerned should get aside-then he fired at the deceased which hit him and he fell down. The appellants then fired 3 or 4 shots at him and hit him. In the F. I.
39. R., it was also stated that P. W. Abdul Sattar and Maqbali were present at the spot along with several others, who were near about but could not be identified. At the trial, he explained the presence of Abdul Sattar and Maqbali by stating that they had arrived by an earlier bus and happened to be going along to the village at that time. He denied having stated in the F. I. R. That other persons had also witnessed the occurrence. These improvements and discrepancies assume importance in the case of a witness like Aurangzeb whose testimony cannot be accepted on its face value without reservations. In particular, as compared with F. I. R., the change in the version at the trial to the effect that the deceased fell down after the first shot was probably introduced to meet the medical evidence according to which the direction of one of the injuries on the deceased was downwards to upwards, which could not have been sustained by him in a standing position.
40. What raises a grave suspicion about the veracity of the prosecution case is the recovery of three .303 bore empties from the spot, which is quite consistent with one person having fired all the four shots at the deceased, and the ejection of the three empties. It may also be that the two culprits fired all the four shots between themselves. However, I find it difficult to believe that while the two accused were content with firing one shot each at the deceased, the third chose to fire two, thus accounting for three .303 empties recovered from the spot. The recovery of four .12 bore shot-gun cartridge empties and one .32 bore pistol cartridge from the spot stands unexplained. The circumstance that while the sizes of the two injuries on the deceased are uniform. Those of the other two vary, cannot lead to a positive inference that three different weapons were employed in causing them. The same weapon may cause injuries varying in size depending on the velocity of the shot and its impact on the part of the body which is hit in the result. I cannot escape the impression that the prosecution has been guilty of adding to the number of culprits, even if it be not a, case purely of false sub--stitution. Who out of the named culprits has been added is merely a matter of speculation.
41. To explain the absence of independent evidence in this case, which could have easily been made available, the learned Advocate-General argued that disinterested people are chary of embroiling themselves in such episodes for fear of creating enmity. This is so, but this argument must not be carried too far, nor should it be complacently accepted to relieve the prosecution of its responsibility to make efforts to produce truthful and indepen--dent evidence where it is available in a case. This responsibility cannot be effectively discharged by despondency in our present unfortunate attitude of apathy and indifference to public crimes in headless disregard of a primary social duty to bring the real offenders to justice.
42. In the present case, a more intensive investigation could have easily brought forth independent evidence at least to the point of showing that the appellants and the absconder had travelled by the same bus armed with weapons, as alleged by the prosecution, and that three persons were seen by disinterested strangers firing at the deceased, and then boarding a car, which was made to halt for them at gun-point.
43. Since I find myself unable to rely implicitly on the evidence of P. W. Aurangzeb, and there being no corroborative c1rcum--stance to support his testimony, I feel constrained to give the benefit of doubt to the appellants. In the result, I accept this appeal and direct that the appellants be acquitted.
44. HAMOODUR RAHMAN, C. J.-I have had the advantage of reading the judgment proposed to be delivered by my learned brother S. Anwarul Haq, J. And the dissenting note written by my learned brother Sajjad Ahmad Jan, J.
45. In this case a person was killed in broad daylight by rifle shots near a bus-stand close to the village of Tehkalbala, only a few miles from Peshawar City itself. The assailants thereafter made a bold get-away in the direction of Jamrud, by ,comman--deering a passing car, presumably at the point of their guns.
46. It is alleged that they were three in number ; one of them is still absconding, another was arrested six days later, and the third twenty-two days later.
47. The incident, which occurred at about 1 p.m., was reported within an hour at the Tahkalbala Police Station, two miles away. Investigation was taken up forthwith, and apart from the dead-- body, blood-stained clothes and blood-stained earth, three empties of .303 bore, four empties of .12 bore and one live' pistol cartridge of .32 bore were also recovered from the place. No weapons were, however, recovered at the instance of the arrested accused. Two rifles with bandoliers containing a large number of cartridges were, however, recovered on search of the house of the accused last arrested, namely, Abdul Rehman ; but the expert could express no definite opinion about the three empties being fired from any one of these rifles. The rifles were found to belong to the village defence organisation.
48. The post-mortem examination of the deceased revealed four bullet entrance wounds of different sizes with four corresponding exit wounds. Two of the entrance wounds were, however, of the same dimensions.
49. The prosecution alleged that the absconder had fired the firs Shot and felled the deceased.
50. Thereafter, the other two assai--lants had also fired shots at the deceased with their respective weapons.
51. The motive alleged for the crime was that a maternal uncle of the deceased had been murdered, and in that connection one Yakub, the father of the accused Abdul Rehman, was triad, convicted and sentenced to rigorous imprisonment for a period of fourteen years, Against this conviction, Yaqub, the father of the said accused, had preferred a revision petition, but the same had been dismissed by the Commissioner, Peshawar Division; only a day before the occurrence. The deceased, it was said, had been actively pursuing the case against the father of the accused Abdul Rehman.
52. The prosecution sought to prove the present case by the direct ocular testimony of three persons, namely, Aurangzeb tP. W. 12), Said Rehman (P. W. 13) and Abdul Sattar (P. W. 14), the evidence of motive, the recoveries of the empties and the medical evidence. Both the Courts below disbelieved Abdul Rehman and Abdul Sattar but convicted both the accused Shamsher and Abdul Rehman, relying on the solitary evidence of Aurangzeb (P. W. 12), because, there was nothing on the record to show that he had any direct cause for enmity with any of the accused persons. Apart from his relationship with the deceased, who was his paternal cousin, he had no other animus against any of the accused. In the circumstances unless he was present and had seen the incident, he would not have been in a position s to lodge the first information report so promptly.
53. Aurangzeb's relationship with the deceased Bahadur Sher did not by itself make him directly interested in the murder of his maternal uncle.
54. The High Court also thought that Aurangzeb could be relied upon, because, he had given the details of the injuries on the deceased in the first information report. This was wrong, as no such details were given in the first information report.
55. My learned brother, Sajjad Ahmad Jan, J., has taken the view that, since the only evidence here is that of Aurangzeb (P. W. 12), it must be scrutinised very carefully before it can be accepted' as the sole basis for the conviction of two persons in such a heinous crime. He has found it not possible to give much credence to this testimony, because, of the recovery of only three .303 emptie3, while there were four wounds of entry on the deceased, which could have been caused by a bullet of that calibre. The slight variation in the dimensions of the injuries of the deceased were, according to hint, due to the location of some of the injuries of softer parts of the body. According to him, such slight variations could not exclude the possibility of all the shots having bean fired by one person and by one weapon.
56. The medical evidence too, according to him, did not support the evidence of Aurangzeb, because, the direction of the injuries on the deceased was from downwards to upwards. The ocular testimony, on the other hand, was that the first shot was fired when the deceased was standing.
57. The recovery of the four .12 bore empty cartridges and one .32 pistol cartridge, for which the prosecution had not been able to give any explanation, also added to the doubt entertained by my learned brother.
58. He furthermore found it difficult to accept that Aurangzeb had accompanied his cousin to the District Courts of Peshawar, because, in cross-examination, Aurangzeb was not in a position to state as to who the other surety for Gul Rehman was and who, if any, of the other villagers had accompanied them to the Courts. There was nothing also to show that this witness had anything to do in connection with the mission which had taker the deceased to Peshawar. The failure of the trial Court to requisition the records of the bail proceedings, which the deceased had gone to attend or to examine any other independent witness, was also, according to Sajjad Ahmad Jan, J., a circumstance which went strongly against the veracity of Aurangzeb as the corroboration they may have furnished was lacking.
59. As against this, my learned brother S. Anwarul Haq, J. Is of the opinion that the discrepancies in the evidence of Aurangzeh are only of a minor nature with regard to details. The fact that he lodged the first information report promptly within an hour has impressed him. He thinks that Aurangzeb must have been present at the spot and seen the incident to be able to give its details within such a short time at the police station, two miles away. This short period of time was, according to him, not also enough to provide any opportunity for deliberation or concoction. He also thought that Aurangzeb had no such direct enmity with the accused persons as to implicate them falsely. In his view, all three must have fired at the deceased and one of them must have fired two shots. The medical evidence indicating four shots on the deceased, therefore, substantially corroborated Aurangzeb (P. W. 12). He has also agreed with the High Court that too much importance should not be attached to the unexplained recoveries or the absence of independent witnesses.
60. In view of this difference of opinion between my learned colleagues, I have given this matter my anxious consideration and have come to the conclusion that while the evidence of Aurangzeb (P.
61. W. 12) is not altogether free from blemishes, yet, nothing has been elicited from him to show that he had any special motive to falsely implicate any-one of the accused persons in this case.
62. I also see no reason to doubt that he did accompany his paternal cousin, the deceased, to Peshawar and was with him when he returned to the bus-stop near Tehkalbala. This has been supported by Gut Rehman (P. W. 15) for whose bail the deceased had gone to Peshawar. This portion of Gul Rehman's evidence has not been seriously challenged in cross-examination. I am not, therefore, prepared to reject this part of his evidence, merely on the ground that he was a person who was beholden to the deceased.
63. The accused had, on the other hand, sufficient motive to take the life of the deceased, and if they were present there with the absconder armed with rifles, they must have entered into a pre-- arranged plan, while travelling in the same bus from Peshawar to Tehkalbala, to finish the deceased.
64. The unexplained recovery of the .12 bore empties and the .32 bore pistol cartridge is not such an astonishing circumstance as to Completely discredit the witness. In this part of the country where people go about openly armed, it is not improbable that some one else may have dropped these empties and unused cartridge. On the other hand, if they were in fact fired by the assailants, then it would further confirm the version of Aurangzeb that all the assailants had fired. It may well be that the shots fired from the '12 bore gun were not as effective at that distance as rifle shots, and hence only rifle shot injuries were found on the deceased.
65. The absence of independent witnesses is also not unusual in this country. It has been our unfortunate experience in every case that independent witnesses or disinterested persons do not usually come forward to embroil themselves in such cases parti--cularly in the North-West Frontier Province, where reprisals against even witnesses is not uncommon.
66. On the whole, therefore, I am inclined to agree with my learned brother, S. Anwarul Haq, J., that Aurangzeb substantially told the truth. I would thus agree that this appeal should be dismissed.