' INAYAT ELAHI KHAN, J.--This appeal is by Muhammad Tahir son of Muhammad Ashraf aged about 33/34 years, resident of village Tehkal Bala, Tehsil and District, Peshawar, who was jointly tried with Muhammad Turab and Sheikh Muhammad Abdullah Sadiq by the learned Additional Sessions Judge-I, Peshawar on charges under sections 302/307/120-B/114/109/34 P.P.C. For the murder of Arbab Sikandar Khan Khalil. The appellant was also tried under section 13 of the West Pakistan Arms Ordinance, 1965 for being in possession of unlicensed firearm. Sheikh Muhammad Abdullah Sadiq, co-accused, died during the trial and, therefore, the case against him stood abated. The other co- accused Muhammad Turab was acquitted for lack of evidence. The appellant was convicted on 12-3-1985 under section 302 P.P.C. And sentenced to death with a fine of Rs,10,000 or in default to further R.I. For two years. He was also convicted under section 13 of the Arms Ordinance and sentenced to two years' R.I. Criminal Appeals Nos.27/1985 and 28/1985 are filed by the appellant against the aforesaid convictions. Criminal Appeal No,103/1985 is filed by the State against the acquittal of Muhammad Turab accused. Murder Reference No, 10/1985 is also before us for confirmation of the death sentence of Muhammad Tahir appellant. We propose to dispose of the appeals as well as the Reference by this judgment.
2. The incident occurred on 7-3-1982 at 10.00 a.m. At a place known as Chandmari Butt in the vicinity of village Tehkal Bala, Tehsil Peshawar. Waris Khan complainant alongwith Roohul Amin PW and one Faqir Muhammad left their houses at about 9/9.30 A.M. And went to the adjoining fields of village Tehkal Bala for cutting grass. When they reached near Chandmari Butt, they saw Arbab Sikandar Khan Khalil going towards the same direction. They also noticed Muhammad Tahir appellant standing at some distance from Chandmari Butt. When Arbab Sikandar Khan Khalil reached near the appellant, he fired 3/4 shots at him with a Tamacha, as a result of which he fell on the ground and expired instantaneously. The appellant started running towards village Lakarai through the fields and the complainant alongwith his companions started chasing him. While chasing the appellant, they saw a person standing in the fields near village Lakarai having a shotgun. The complainant party asked that person to help them in apprehending the appellant as he had committed the murder of the deceased. The said person fired a shot at the appellant in order to apprehend him but the appellant could not be arrested and while running he reached the hujra of one Haji Muhammad Hussain in village Lakarai. Wails Khan and his companions informed Haji Muhammad Hussain about the incident who apprehended the appellant and disarmed him of his pistol. The complainant and Faqir Muhammad then returned to the scene of occurrence after leaving Roohul Amin with the appellant in the hujra of Haji Muhammad Hussain. On reaching the spot, they met the Investigating Officer who recorded the report of Waris Khan in the form of a Murasila Ex.PA/1 which was later on incorporated into F.I.R. (copy Ex.PA). During the investigation, Muhammad Turab, acquitted accused, and Sheikh Muhammad Abdullah Sadiq were also arrested since they were found involved in the crime. Sabzali Khan (PW.21) was posted as S.I. In Police Station, University Town. He alongwith some police officials met Jawahir Shah DSP Cantt: on Abdarra Road who informed them about the murder of Arbab Sikandar Khan Khalil near Chandmari Butt. Sabzali Khan alongwith the police officials accompanied Jawahir Shah D.S.P. To the spot in a police van. On the scene of occurrence they found many persons gathered and the dead body of Arbab Sikandar Khan Khalil was lying on a cot. In the meantime, Waris Khan complainant and one Faqir Muhammad also arrived 'at the spot and informed Jawahir Shah D.S.P.
That the person responsible for the murder had been apprehended in village Lakarai. The D.S.P.
Proceeded towards the said village and Sabzali Khan S.I. Recorded the report of Waris Khan in the form of a Murasila which was later on sent to the Police Station for registration of the case. He also inspected the .Dead body of the deceased and prepared the injury-sheet Ex.P.11/2 and inquest report Ex.P.11/3. The dead body was taken for post-mortem examination to the hujra of the deceased in the village under the direction of the concerned authority. He then inspected the spot and prepared the site-plan Ex.P.21/3 at the instance of Waris Khan complainant and Faqir Muhammad. The blood-stained earth collected from the spot was sealed into a parcel vide memo.
Ex.PW.13/3. Two crime empties of .32 bore Ex.P6 were also recovered from the scene of occurrence alongwith blood-stained spent bullet Ex.P.5 from the clothes of the deceased which were sealed into a parcel. In the meantime, Roohul Amin PW also arrived at the spot from village Lakarai and his statement was recorded as an eye-witness. The sickles produced by Faqir Muhammad, Waris Khan and Roohul Amin were also taken into possession vide recovery memo.Ex.P.R /1. Sabzali S.I. Was informed that the appellant had been arrested in village Lakarai and had been removed to Tehsil Gorgatri lock-up. He accordingly went there and found the appellant in custody. Since the appellant had sustained some injuries, his injury-sheet was prepared and he was medically examined. The clothes of the appellant having corresponding cut marks were also taken into possession. Then he went to the Police Station where Musharraf PW produced to him a sealed packet containing a spent bullet alongwith blood-stained clothes of the deceased which were also sealed into a parcel. He came to know that since the deceased was a prominent political figure of the area, a special team had been constituted for the investigation of the case. He also joined the Team as an Assistant. Two crime empties of .32 bore with a spent bullet and the bullet recovered from the dead body by the doctor alongwith .32 bore pistol were sent to the Firearms Expert whose report Ex.PT/3 is in positive. The blood-stained earth and clothes of the deceased were also sent by him to the Chemical Examiner for opinion. During the investigation conducted by Zardool Khan Inspector, the witness remained associated with the same and became a marginal witness to recovery memo. Ex.P.R/7 whereby the articles Ex.P/44 to Ex.P/52 were taken into possession. Waris Khan (PW.15) and Roohul Amin (PW.16) were examined as eye-witnesses. They consistently stated that while going to the fields for cutting grass they found Arbab Sikandar Khan Khalil going towards Chandmari Butt and the appellant who was standing nearby fired 3/4 shots at him with his pistol who was hit with the fire shots and fell on the ground. The appellant then started running towards village Lakarai. Both of them alongwith Faqir Muhammad started chasing the appellant. During the chase a person working in the fields of village Lakarai also fired a shot at the appellant with a view to apprehend him. The appellant, however, did not stop and-reached the hujra of Haji Muhammad Hussain in village Lakarai and entered the hujra. They informed Haji Muhammad Hussain that the appellant had killed Arbab Sikandar Khan Khalil. He caught hold of the appellant and disarmed him of his pistol. Roohul Amin was left in the hujra of Haji Muhammad Hussain with the appellant whereas Waris Khan complainant and Faqir Muhammad returned to the scene of occurrence to inform the relatives of the deceased. When they reached Chandmari Butt, a police officer was present there to whom Waris Khan reported the matter which was recorded in the form of a Murasila Ex.PA/1. Haji Muhammad Hussain (PW.10) stated that he was standing in front of his hujra in village Lakarai. At about 11.00 a.m. He heard alarm from the eastern side of the hujra and saw a man running followed by other people who were crying that the man should be apprehended because he had killed another person. The said person was stopped who said that the people chasing him were going to kill him. He was also having a pistol in his hand. The witness disarmed him of his pistol and took him inside the hujra. Thereafter, he unloaded the pistol and found one round in the chamber alongwith another charger which also had a live round. The witness also correctly identified the appellant who was present in Court during the trial. He stated that on arrival of the police, the appellant was handed over to them alongwith the pistol, chargers, live rounds and other articles. He is also a marginal witness to the recovery memo. Ex.P.R./9 relating to the recovery of a maswa k, a zero watt: bulb, a watch and an envelope from the personal search of the appellant. Shah Jehan Khan Shinwari, Revenue EAC (PW.12) on 17-3-1982 recorded the confessional statement Ex.PW.12/2 of Muhammad Turab, acquitted accused. Muhammad Naeem Khan, A.C., Peshawar (PW.4) had recorded the confessional statement of Muhammad Tahir appellant on 18- 5-1982 after observing all the legal formalities. Jawahir Shah D.S.P. (PW.17) was informed by some one that Arbab Sikandar Khan Khalil had been shot dead in the vicinity of firing range (village Tehkal Baia). He proceeded to the spot and near Abdarra Chowk he met the police-party including Sabzali Khan S.I. And took them along in a van to the scene of occurrence. He found the dead body of the deceased lying on a cot and saw many people of the village present on the spot. Waris Khan complainant and one Faqir Muhammad also came and informed him that the appellant had been arrested in village Lakarai in the hujra of Haji Muhammad Hussain alongwith the weapon of offence. He directed Sabzali Khan S.1. To remain on the spot and himself went to village Lakarai to the hujra of Haji Muhammad Hussain where he found the appellant confined by Haji Muhammad Hussain in his hujra. Haji Muhammad Hussain also produced to him .32 bore pistol Ex.P.53 alongwith two chargers Ex.P.54 with two live cartridges. The handle of the pistol on its right side was broken which was tied with a thread. He arrested the appellant and recovered a zero Watt: bulb, one maswa k, one card and an envelope from his personal search alongwith a wrist watch. He informed the S.S.P. And S.P Urban about the occurrence on wireless. The appellant was then seated in a jeep and taken to Gorgatri via Warsak Road. Since the appellant had sustained some injuries, therefore, he instructed the Investigating Officer to get him medically examined.
3. Dr. Khaista Mir Afridi (PW.11) conducted autopsy of the deceased on 7-3-1982 at 1.15 p.m. And found the following injuries:-
(1) Firearm inlet wound on the mid sternal line at the level of 5th rib of 1" x 1" size.
(2) Firearm inlet wound on the right 5th inter-costal space, about 2" from mid sternal line of 1/2" x 1".
(3) An exit wound of wound No,2 of 1" x 1" size at the level of 8th right intercostal space in posterior exallery line.
(4) Firearm inlet wound of 1" x 1/2" size at the base of left little finger on the dorsum of hand.
(5) An exit wound of wound No,4 on the palm of the left hand at the base of middle finger, size 1" x 1".
(6) Firearm entry wound on the little aspect of right forearm of 1" x 1" size.
(7) An exit wound of wound No,6 on mediolateral aspect of right elbow joint of 3/4" x 1/2" size.
(8) Firearm inlet wound of 1" x 1/2" on mediolateral aspect of right arm (upper arm).
(9) An exit wound of injury No,8, 1" x 1" size on the medial aspect of right arm (upper arm) about three inches distal to armpit.
' Only external examination was allowed vide order of the Deputy Commissioner. Thoracic wall was found injured which could be seen externally. The post-mortem examination was conducted in the hujra of the deceased as directed by the authorities concerned. A bullet recovered from the back of left lumbar region which was lying just beneath the skin by a small incision was handed over to the police in a sealed packet. In cross-examination he admitted as correct that the deceased had died between 8.00 and 10.00 a.m. He further stated that the direction of injuries Nos.6 to 9 was from down upward if the deceased was standing. He said that "the possibility cannot be ruled out if the sizes of entrance and exit wounds are different; it might have been caused by different projectile".
4. Dr. Bakht Jamal (PW.14) examined Muhammad Tahir appellant on 7-3-1982 at 3.50 p.m. And found the following injuries:-
(1) Firearm entry wound circular in shape 1 cm in diameter on the left scapula in the middle part.
Corresponding mark on the clothes present.
(2) Firearm entry wound on the dorsum of the right hand at the base of little finger.
(3) Two pellet wounds on the back of the left leg upper 1/3rd about four inches apart from each other. His report in this respect is Ex.PW.14/1.
5. Bashir Ahmad D.S.P., Firearms Expert (PW.5) stated that he conducted the examination of one 7.65 M.M. Bore crime bullet, two 7.65 MM bore crime empties, one 7.65 MM bore crime bullet, one pistol and five live cartridges of the same bore by preparing the test cartridges and the test bullets from the pistol in question under Forensic Comparison Microscope. The examination revealed that the crime empties were fired from 7.65 bore pistol and two crime bullets were also fired from the same pistol of the same bore. The composite micro-photographs were also prepared by him which are Ex.PT/1 and Ex.PT/2. Zardool Khan Inspector, Crimes Branch (PW.7) also partly investigated the case and arrested Muhammad Turab accused on 9-3-1982. He recovered a large number of books and journals on Islamic Fiqa from the house search of the appellant as well as from the search of his shop which were duly exhibited at the trial. The recovery of this religious literature, according to the learned counsel for the appellant, shows that the appellant was a highly religious minded person and belonged to Ahl-i-Hadis Sect. Zardool Khan Inspector also recovered 5 live cartridges of .12 bore and 5 live cartridges of 7 MM from the shop of the appellant. From another shop of the appellant situated in University Town known as "Ahl-i-Hadis Chappal Store", he recovered a book known as Targets of Muslims in Afghanistan alongwith some other religious literature. In his confessional statement the appellant has given a detailed account of his religious activities and also stated that the Ahl-i-Hadis wanted to establish a Religious Institution in village Tehkal Bala and Arbab Sikandar Khan Khalil was opposed to this idea since he disliked Ahl-i-Hadis from the very beginning. He also stated that the pistol in question was taken by him from one Samin Jan and he was in search of the occasion to kill the deceased. On the day of occurrence he found the deceased going towards Chandmari Butt. He went near the deceased and fired at him from a distance of 8/10 paces and then decamped towards fields. He was given a chase by some people and on the way he was fired at by someone and the pellets hit his body. Since he became tired by running in the fields, he stopped for a while where he was arrested by a bearded person.
The people chasing him also arrived and he handed over his pistol to the said person. After about half an hour the police also arrived there. From the confessional statement of Muhammad Turab, acquitted accused, it appears that he gave no effective role to himself in the commission of the crime excepting that he was informed by Muhammad Tahir appellant that Arbab Sikandar Khan Khalil was an atheist and, therefore, he wanted to murder him. On the day of occurrence he alongwith Muhammad Tahir appellant went towards Chandmari Butt where the deceased was also present. Muhammad Tahir appellant took pistol from him and fired at the deceased who was hit and fell on the ground. Then Muhammad Tahir appellant ran towards village Lakarai and he himself went towards village Tehkal Payan. Both the appellants (sic) retracted from their confessional statements when examined under section 342 Cr.P.C. The appellant stated that the confession had been extracted from him by undue influence, torture and humiliation. He stated that after his arrest the police also arrested the womenfolks of his family alongwith some children.
The family members of his brothers-in-law were also arrested to put pressure upon him for making a confession. He stated that his confessional statement was fabricated by the police. He denied having entered into a conspiracy with co-accused for committing the murder of the deceased. He pleaded innocence and false involvement in the case. About the prosecution witnesses he stated that they were under the influence of Arbabs since one of them was employed as a peon in the Bar Room and a brother of the other witness was their tenant. He further stated that he deceased was a political leader and opposed to the Government on the issue of Afghan Mojahiddin and thus there was a conflict between him and some students organization and the deceased was murdered on account of this rivalry. He denied the recovery of the pistol from his possession and also denied the injuries on his person by saying that these were fabricated by the police to be used as evidence against him. He also denied his apprehension by Haji Muhammad Hussain in his hujra in village Lakarai and stated that he had gone to the house of in-laws of his brother in village Regi which is close to village Lakarai and while coming back from there he was apprehended by the police and taken to Gorgatri. Muhammad Turab, acquitted accused, also retracted from his confession and stated that it was extracted from him by the police by subjecting him to torture. He stated that he informed the Magistrate about his detention and torture while in police custody for 10 days. He thus pleaded innocence and false involvement in the case. Both the appellant and the acquitted accused did not produce any evidence in defence.
6. The learned trial Court did not rely on the confessional statements of the appellant and Muhammad Turab and, therefore, acquitted Muhammad Turab for lack of evidence whereas the appellant was convicted and sentenced by placing reliance on the ocular testimony. The medical evidence and the evidence of the Firearms Expert, the arrest of the appellant soon after the occurrence with the weapon of offence and the recovery evidence were also relied upon.
7. The learned counsel for the appellant contended that since copies of the statements of all the witnesses recorded during the investigation and copies of other documents were not provided to the appellant by the trial Court, a revision was filed in the High Court which was accepted and it was held that the appellant was entitled to' the copies of the statements of all the witnesses examined by various Investigation Agencies who conducted investigation in the case under Chapter XIV of the Code of Criminal Procedure, whether such statements were recorded lay them separately or in gist form or in police diaries, subject to the restrictions mentioned in the proviso to subsection (1) of section 265-C Cr.P.C. It is not denied by the learned counsel that after the decision of the High Court the appellant was provided with copies of the statements of all the witnesses examined during the investigation and the witnesses were summoned again for cross- examination. His grievance is that the copy of the report submitted to the Governor N.-W.F.P. Has not been provided to the appellant to which he was legally entitled and in the absence thereof the case of the appellant had been prejudiced. Regarding this submission, the learned trial Court pointed out that in the letter dated 29-11-1983, produced by the Public Prosecutor, from A.I.-G.
(Crimes) to the S.S.P., Peshawar and another letter dated 4-12-1983 it had been mentioned that the investigation of this case was jointly conducted by the Detective Staff and Crimes Branch under the direction of A.I.G./Crimes, S.P. .Urban and S.P. Special Branch and that after completion of the investigation challan was submitted by S.H.O. University Town and that no report was sent by the District Police, Peshawar to the Governor. Since no report allegedly sent to the Governor was available, it could not be provided to the appellant. Further, it is not shown by the learned counsel that the report sent to the Governor was prepared by the Investigation Agency under Chapter XIV of the Code of Criminal Procedure and it was not merely an exercise conducted by the police under an Executive or Administrative order. In this view of the matter, this contention raised by the learned counsel is without any substance. It is next contended that the medical evidence was not consistent with the ocular testimony which should not have been taken into consideration against the appellant; that from the nature of the injuries and the evidence of the Medical Officer it appeared that two different weapons had been used and that the direction of the injuries sustained by the deceased was from down upward which belied the eye-witness account that the deceased was fired at when he was in a standing position. There is no force in this contention. Dr. Khaista Mir Afridi (PW.11) A had opined "That the possibility cannot be ruled out if the sizes of entrance and exit wounds are different, it might have been caused by different projectile." There is no positive assertion by the doctor that two different weapons were used. Further, it is not the case of the prosecution that the deceased and the appellant were standing parallel to each other on the same level when the deceased was fired at. The medical evidence being of confirmatory nature cannot belie the ocular testimony if it is found to be trustworthy and reliable. The appellant was also examined by Dr.Bakht Jamal (PW.14) and found to have suffered firearm injuries caused by pellets. It is in evidence that while running away from the scene of occurrence and being chased by the eye-witnesses, the appellant was fired at by a person standing in the fields with every possibility that he was hit and injured. It is contended by the learned counsel that the appellant had no injury on his person and the report of the doctor was manipulated because neither Haji Muhammad Hussain PW nor Jawahir Shah D.S.P. (PW.17), who arrested the appellant, said anything about the injuries on his person. There is no force in this contention. Jawahir Shah D.S.P. (PW.17) clearly stated that since the appellant had sustained some injuries, therefore, he instructed the Investigating Officer for doing the needful. Sabzali Khan S.I. (PW.21) also stated that when he went to Corgatri where the appellant had already been taken, he found the appellant in injured condition and, therefore, sent him for medical examination. The statement of the appellant under section 342 Cr.P.C. That the injuries found on his person were fabricated is not at all convincing. It is difficult to say that Dr. Bakht Jamal (PW.14) had falsely deposed about the three firearm injuries sustained by the appellant. His report Ex.PW.14/1 is absolutely clear on this point. The next contention of the learned counsel is that no motive against the appellant for causing the murder of the deceased had been proved and, therefore, the possibility of his false involvement in the case cannot be excluded. The prosecution case is not only supported by the medical evidence and the ocular testimony, the appellant was also apprehended soon after the occurrence in village Lakarai by Haji Muhammad Hussain alongwith the weapon of offence. In these circumstances, the mere fact that no motive was established by the prosecution would not affect the veracity of the proecution case. It is well settled that people do commit murders even for petty matters. Whether there was no motive for the offence or the motive was strong or weak would not be so material when the prosecution case stands established against the accused by cogent and convincing evidence. It is also contended that the time of occurrence had not been correctly given by the prosecution. In the inquest report, the time of occurrence is mentioned as 9-30 a.m. And in the F.I.R.
It is given as 10-00 a.m. The eye-witnesses; namely, in Waris Khan and Roohul Amin alongwith Faqir Muhammad had left their houses at 9/9-30 a.m. For cutting grass in the fields. Thus it is contended that it was not clear as to when the occurrence had taken place. This contention is equally without force. Even if the eyewitnesses had left the village at 9-00 or 9-30 a.m., the possibility cannot be excluded that the occurrence had taken place between 9-30 and 10-00 a.m. It is nowhere mentioned that the eye-witnesses had given the precise time of occurrence by looking at the watch. They were not in possession of any watch at that time. In these circumstances, the difference of half an hour about the time of occurrence would not be so material as to cast doubt on the veracity of the prosecution case. The recovery of the crime empties from the spot and a spent bullet from the dead body of the deceased is also questioned for the reason that Musharraf FC (PW.1) who was the first to arrive at the spot did not notice any crime empty nor this fact was mentioned in the inquest report and that the spent bullet allegedly recovered from the dead body was not sealed into a parcel but handed over by the Doctor to Musharraf FC (PW.1) in a piece of paper. This contention is also without any substance. The recovery of the crime empties by the Investigating Officer is proved by convincing evidence. The mere fact that Musharraf FC (PW.1) did not notice the crime empties at the spot before the arrival of the E Investigating Officer, would be of no consequence. From the evidence it also appears that in all probability the inquest report was prepared by the Investigating Officer at once on arrival at the scene of occurrence and thereafter Waris Khan Complainant returned from village Lakarai and lodged the report. In these circumstances, the absence of any mention of the crime empties in the inquest report would not be very material. Dr. Khaista Mir Afridi (PW.11) had stated that the spent bullet recovered from the dead body was handed over to the Police Constable in a sealed packet duly signed. Similarly, Musharraf FC (PW.1) in his examination-in-chief stated that besides the bloodstained clothes he was also given a sealed phial containing a bullet Ex.P.5 alongwith the post mortem documents. In view of this evidence there appears to be no reason to doubt the recovery of the spent bullet from the dead body of the deceased. It is also contended that the pistol handed over to Jawahir Shah D.S.P. By Haji Muhammad Hussain was not sealed into a separate parcel which was sent to the Firearms Expert alongwith the crime empties and the lead bullets; that the pistol should have been sent to the Expert separately. We are not convinced by this argument. The recovery of the pistol from the possession of the appellant is convincingly proved by the evidence of Haji Muhammad Hussain and the eye-witnesses who had given a chase to the appellant soon after the occurrence.
The recovery of the crime empties and the lead bullets is also proved by reliable evidence and we see no reason why this evidence should not be believed. The mere fact that the weapon of offence, the crime empties and the spent bullets were simultaneously sent to the Firearms Expert F would not show, in the circumstances of the case, that these incriminating articles were planted by the police. Similarly, the objection that the parcel was bearing the seal of "S.A." showing the name of Sabzali Khan S.I. (PW.21) and not the name of Jawahir Shah D.S.P. Who affected the recovery of the pistol would be of no consequence. The other objection that the recovery of the incriminating articles was effected on 7-3-1982 and forwarded to the Firearms Expert on 14-3-1982 without any explanation for the delay also carries no force, for, in our view, nothing turns on this point because no question was asked from the Investigating Officer who might have been able to give a reasonable explanation for the same. The next contention of the learned counsel is that no blood was found at point No,2 where, according to the site-plan, the deceased was hit with the fire shots.
Instead the blood was recovered from underneath the cot on which the dead body was placed and no trail of blood was found between point Nos.1 and 2. The contention is that the place of occurrence had not been correctly shown by the prosecution. It may be mentioned that the deceased was wearing heavy clothes and the! Possibility of the blood being soaked in the clothes cannot be excluded and when the dead body was placed on the cot, the blood which oozed out of the wounds fell on the ground. We, therefore, do not agree with the learned counsel that the occurrence had taken place at some place other than the one shown by the prosecution. The opinion of the Firearms Expert is also questioned by the learned counsel but after going through his statement, who appeared as PW.5, we find that his evidence is not open to any exception. The Composite Microphotographs prepared by him were on the file as Ex.PT/1 and Ex.PT/2. He conducted the examination by preparing the test cartridges and the test bullets from the pistol in question under Forensic Comparison Microscope and had given full details of the examination thus conducted. He was cross-examined at great length but nothing material was brought out to create doubt about the opinion given by him. The eye-witnesses Waris Khan and Roohul Amin, it is contended by the learned counsel, were procured subsequently because one of them was an employee of the Bar Room and lived in village Shahab Khel whereas the brother of the other witness was a tenant of the deceased and thus they being not independent witnesses, their evidence was not to be implicitly relied upon. This argument is also without any force. We find their evidence consistent on the point that they alongwith Faqir Muhammad were going to the fields for cutting grass when they saw the occurrence. Sickles carried by them were also recovered by the Investigating Officer. Further, their testimony is fully corroborated by Haji Muhammad Hussain who apprehended the appellant in front of his hujra while he was being chased by the witnesses. Their evidence that the appellant was carrying a pistol at the relevant time and was disarmed by Haji Muhammad Hussain in village Lakarai is further corroborated by Haji Muhammad Hussain who stated that the pistol of which he disarmed the appellant was handed over to Jawahir Shah D.S.P.
When he reached his hujra. The evidence of Jawahir Shah D.S.P. Is also to the same effect. The injuries sustained by the appellant soon after the occurrence further support the ocular testimony that he was fired at by a person standing in the fields with his shot gun with a view to prevent him from running away. The statement of the appellant that there was no injury on his person and the evidence in this respect was fabricated is not at all convincing. The ocular testimony duly corroborated by the medical evidence and the evidence of the Firearms Expert coupled with the recovery of the pistol from the appellant by Haji Muhammad Hussain soon after the occurrence and the injuries found on the H person of the appellant would go a long way to establish the prosecution case against him beyond any reasonable doubt. The eye-witnesses had given an intelligent version of the incident. Both of them have testified about the fatal firing upon the deceased by the appellant when they were proceeding to the fields for cutting grass. They have also deposed to the fact of giving a chase to the appellant soon, after the occurrence since he started running away towards village Lakarai. The incident occurred in broad daylight and thus there was no question of mistaken identity. The eye-witnesses are independent and disinterested having no hostility towards the appellant nor any interest in the deceased. {{PAGE CUTTING}} n a careful appraisal of the entire evidence in the case, were satisfied that the guilt of the appellant has been established eyond any shadow of reasonable doubt. We are of the firm opinion that the appellant was rightly convicted by the learned Additional Sessions Judge for the murder of Arbab Sikandar Khan Khalil. There, however, is no evidence on record to connect Muhammad Turab, acquitted accused, with the crime. His confessional statement and that of the appellant were rightly excluded from consideration by the trial Court for the reason that the confessional statement of Muhammad Turab was recorded on 17-3-1982 though he was arrested on 9-3-1982 and that of the appellant was recorded on 18-3-1982 after his arrest on 7-3-1982. The delay in recording their confessional statements has not been explained. On the other hand, the plea taken by the appellant and the acquitted accused is that the confessional statements were extracted from them by torture and undue influence. It has been rightly observed by the trial Court that in case they were willing to make confession, there was no reason why their confessional statements were not recorded soon after their arrest. Excepting the retracted confession of Muhammad Turab, acquitted accused, there is no evidence worth the name against him. He had been, therefore rigi,tly acquitted of the charge.
9. Regarding the conviction of the appellant under section 13 of West Pakistan Arms Ordinance, it may be mentioned that the pon of offence recovered from him is not covered under the Proviso section 13 of the West Pakistan Arms Ordinance, 1965 (XX of . He, therefore, could not be tried by the learned Additional ions Judge. The trial should have been conducted by a Magistrate lass as required by section 14-A substituted vide Pakistan Arms Sandmen) Ordinance, 1976 (XXI of 1976)..
For these reasons, the 1 of the appellant conducted by the learned Additional Sessions was without jurisdiction. His conviction and sentence under Section 13 of the West Pakistan Arms Ordinance, therefore, cannot be maintained.
10. Resultantly, Criminal Appeal No,28/1985 stands dismissed and the death sentence of Muhammad Tahir appellant is confirmed. Criminal Appeal No,103/1985 filed by the State against the acquittal of Muhammad Turab is also dismissed. Murder Reference No,10/1985 is answered in the affirmative. Criminal Appeal No,27/1985 against the conviction of the Appellant under Section 13 of the West Pakistan Arms Ordinance, 1965, is, however, accepted and the sentence imposed upon him is set aside.