1. MUHAMMAD GUL, J.- Faqir Muhammad (appellant No. 1 herein), and his three sons Abdus Salam (appellant No. 2 herein), Abdus Samad and Abdul Majid, were tried and convicted by learned Additional Sessions Judge, Peshawar, under sections 302 and 449 read with section 34 of the Pakistan Penal Code, for committing, in furtherance of their common intention, the murder of Iran Shah, after having committed criminal trespass in the house of the deceased's father Arjali, at about 5 a.m. On 15-8-1969 in village Sufaid Dheri, Police Station Tehkal. On the first count, Faqir Muhammad was sentenced to death and his three sons to transportation for life each. On the second count all the four accused were sentenced to 7 years' rigorous imprisonment and a fine of Rs. 500, or in default of payment of fine to a further rigorous imprisonment of 21 months each. In the case of Faqir Muhammad, the sentences of imprisonment whether substantive or otherwise were to take effect only if his death sentence was not confirmed. In the case of the other three accused, the sentences were made concurrent.
2. On appeal by the convicts, and on reference under section 374, Cr. P. C., a Division Bench of the Peshawar High Court confirmed the sentence of death of Faqir Muhammad and also maintained his conviction and sentence under section 449, P. P. C. As aforesaid. Of the remaining three convicts, the appeal of Abdus Salam was dismissed on both the counts, while that of the remaining two accused, namely, Abdus Samad and Abdul Majid was accepted and they were acquitted of both the charges. There is no appeal against their acquittal.
3. Leave to appeal was granted to consider whether it would be con--sistent with the safe dispensation of criminal justice to maintain the convictions of the two appellants herein, when on practically the same evidence the other two co-accused have been acquitted by the High Court on appeal.
4. The prosecution case briefly is that Arjali (P. W. 10), and his two sons, namely, Khan Muhammad (P.
5. W. 1), and Iran Shah deceased, lived together in the same house. On 15-8-1969, at about 5-15 a.m., the two appellants, who carried '303 an 11 shots rifle each, and the two acquitted accused, who had a shot-gun each, trespassed into the house of Arjali when he and his wife; Mst. Ghuncha (P. W. 9), Mst. Shah Jahan (P. W. 1 I), wife of his son Khan Muhammad were asleep in the courtyard, and his son Iran. Shah, (who incidentally was unmarried) was asleep on the roof of the house. Khan Muhammad however had awaken, but had gone to the mosque for morning prayers. The two appellants climbed the roof of the house and started tiring at Iran Shah in his bed where he was asleep. Mst. Ghuncha, Arjah and Mst. Shah Jahan were awakened by the report of shots and saw the two appellants firing at the sleeping man. They also saw Abdus Samad and Abdul Majid the two acquitted accused armed with shotguns standing near their cots to prevent any retaliation.
6. Iran Shah died in instantaneously, Khan Muhammad, on hearing the report of gun-fire, and the cries of the women rushed back to his house and saw the four assailants leaving the house carrying their arms. On being questioned by Khan Muhammad as to what they had done, Faqir Muhammad remarked that they had avenged the murder. (The reference was to the murder of Ibrahim a nephew of Faqir Muhammad appellant). The appellants wanted to attack Khan Muhammad, but he was able to save himself by going round the corner. The four assailants then decamped from the scene. Khan Muhammad after being apprised of the details of the occurrence by the inmates of the house, cycled to Me Police Station Tehkal, at a distance of 2 miles where he lodged the report Exh. P. A. Which was recorded by Muhammad Sher Khan S. H. O. (P. W. 12) at 6. a.m.
7. As regards the motive for the crime, there is confirmed blood feud between the parties. In November 1961, Faqir Muhammad's nephew Ibrahim was killed for which Khan Muhammad (P. W. 8) and his brother Mehrban Shah were both charged. Mehrban absconded and remained fugitive from justice. Khan Muhammad was, however, tried by a Jirga, but was acquitted. After his acquittal, Mehrban Shah also returned and was allowed bail. His case is still pending before a Jirga. After that incident, Abdus Salam appellant also attacked Mehrban Shah to avenge the murder of his cousin.
8. Mehrban Shah retaliated by gun-fire and a case under section 307, P. P. C. Was registered against him. He was tried, con--victed and sentenced to rigorous imprisonment for three years and a fine of Rs. 500. Mehrban Shah was undergoing his sentence when the present occurrence took place.
9. After recording the first information report, the S. H. O. Repaired to the spot where he prepared the injury statement and the inquest report of the deceased. He also recovered 7 empties of .303 rifle along with 9 lead bullets from two shots on the roof top where Iran Shah lay dead. Blood--stained articles and earth were also recovered from the roof. Of the four accused, Faqir Muhammad was arrested on the same day, and a .12 bore licensed gun along with its licence was recovered from his house. Abdus Salam appellant along with his brothers disappeared from the village and was arrested on 11-9-1969 along with his brother Abdus Samad. Abdul Majid, the other accused was arrested on 17-9-1969.
10. The autopsy of the deceased showed 7 fire-arm entrance wounds and 8 exit wounds on various parts of the body. Death, according to Dr. Muhammad Iqbal (P. W. 1) was due to fire-arm injury to the intestines which resulted in severe hemorrhage and shock. The Medical Officer also removed pieces of bullets from the dead body, 2 of which were embedded in the left arm and the others in the abdomen. The death, according to the doctor, took place within 15 to 30 minutes of the injuries.
11. The defence was bare denial. However, the previous incidents leading to the blood feuds between the parties were admitted. Faqir Muhammad appellant also pleaded alibi, the details of which he gave for the first time in the trial Court in the following words:- "On the morning of the alleged murder, I had suddenly fallen ill with food poisoning in my village. I was taken by my son Abdul Samad accused on a scooter to the Lady Reading Hospital, Peshawar; where I was admitted and given treatment till 7 a.m. Next morning. My other son Abdul Salam also came to the hospital the same evening and he also stayed with me till 7 a.m. When I was taken back by my sons. The medical certificate is Exh. D. X., while the prescription is Exh. D. X./1. The deceased Iran Shah was a desperate man.
12. The parents and the brothers of the deceased were tired of him and they have murdered him and falsely charged us."
13. Faqir Muhammad examined Doctor Abdus Subhan (D. W. I) in support of his defence plea. The latter besides his own evidence, proved the medical certificate Exb. D. X. And also the out-patient ticket Exh. D. X./1, tending to show that Faqir Muhammad had been under the treatment of the witness in the casualty ward of the Lady Reading Hospital, Peshawar from 9 p.m. On 14-8-1969 till 7 a.m. On the following morning. This evidence will be discussed in greater detail in the proper sequel.
14. The prosecution case rested mainly on the evidence of Mst. Ghuncha, Arjali, Mst. Shah Jahan and her husband Khan Muhammad. Khan Muhammad is not an eye-witness though he is first informant and is also alleged to have seen the four assailants leaving the scene immediately after the occurrence. He, however, did not inspire the confidence of the trial Court and the learned Judges in the High Court. Even the learned Advocate-General did not rely upon his evidence.
15. Therefore, his evidence can be excluded from consideration and the prosecution case really rested on the three eye-witnesses, Mst. Ghuncha, Arjali and Mst. Shah Jahan. They are inmates of the house and, therefore, natural witnesses. There were no suggestions in their cross-examination that they were present elsewhere than in the house at the time of the occurrence. The Investigating Officer in his cross-examination was definite that a person standing on the roof where the deceased was asleep could be easily seen from the courtyard. The three eye-witnesses are consistent in their account, that when they were startled by gunshots they saw the two appellants on the roof firing (sullenly) with the rifles and the two acquitted accused armed with guns standing near their cots. True, these witnesses are interested because they are closely related to the deceased, they are invertebrates, treated by the trial Court arid the High Court as creditworthy, particularly when there was corroborative evidence on material particulars connecting the two appellants and the two acquitted accused with the commission of the crime. It is important to observe that the four assailants and the three eye-witnesses are named in the first information report which was lodged within about 45 minutes of the occurrence. The eye-witness account is supported by the medical evidence and the recoveries of empties from the spot, which show that at least seven shots were fired. This sullen firing was symptomatic of the strong motive, the assailants had against the deceased and his family. Then Abdus Salam and his two brothers, disappeared from the village immediately after the occurrence which is also a significant circumstance against them.
16. Mr. S. M. Zaffar, learned counsel for the appellants submitted that there was material discrepancy between the evidence of the three eye--witnesses and the first information report in that according to the F. I. R. All the four accused had climbed the roof where the deceased was done to death, but that the eye-witnesses were unanimous that only the two appellants had climbed the roof too. It was also stressed that the three eye-witnesses had been disbelieved as to the participation of Abdus Samad and Abdul Majid in the transaction and this is enough to erode their veracity even as against the two appellants, who at once become entitled to benefit of doubt.
17. Nothing turns on the discrepancy in the first information report, for, as pointed out already, Khan Muhammad, the first informant was himself not an eye-witness to the occurrence. He gave the account on the information imparted to him by the inmates of the house and, therefore, it is no wonder that there crept a alight discrepancy in the narration of incident by the first informant when he made the F. I. R. Then it is not quite correct to say that the three eye-witnesses were disbelieved by the learned Judges in the High Court, vie-a-vie the participation of Abdus Samad and Abdul Majid in the incident. The fact of the matter is that the learned Judges in the High Court gave benefit to Abdus Samad and Abdul Majid accused because "they did not take any part in the actual shooting" and the only role ascribed to them was that they stood in the courtyard to prevent any resistance by the inmates. In view of the partisan nature of the primary evidence produced in support of the prosecution case, learned Judges did not consider it "safe" to uphold the conviction of Abdul Majid and Abdus Samad in the absence of further corroboration connecting them with the crime. To distinguish the case of the two appellants from that of the two acquitted accused the learned Judges relied upon the medical evidence, recoveries of 7 empties and the bullets as amply corroborating the direct evidence of the three eye-witnesses against the two appellants whom they had seen actually engaged in the firing at the deceased.
18. It was next submitted by the learned counsel that it was admitted by the three eye-witnesses that they were asleep and, therefore, they: could not be witnesses to the entry of the assailants in the house or their climbing up of the roof top. The argument was that in all probability, the deceased was killed long before 5-00 a m. And that it was a case of "unwitnessed crime." According to the learned counsel, the death had taken place at about 2-30 a.m. The argument, however, is without any basis. No question was asked in cross-examination to the doctor as to the stomach contents, of the deceased. In the absence of any such material on the record, it is not possible to accept an argument which is based entirely on speculation to shift the time of death of the deceased different from that testified by the eye-witnesses. It also completely overlooks the fact, that the deceased was Oiled by repeated rifle fire by the appellants from the distance of three to five feet and the inmates must have shaken up from their sleep and seen the assailants. Therefore, in the very nature of things, it is fanciful to suggest that, it was a case of unwitnessed crime.
19. The main argument of the appellants' learned counsel, however, rested on the evidence of alibi of Faqir Muhammad appellant. According to this evidence at the material time, he suffered from food poisoning and remained in the casualty ward of Lady Reading Hospital at Peshawar under the treat--ment of Doctor Abdus Subhan from 9 p.m. On 14-8-1969 to 7 a.m. The following morning. Dr. Abdus Subhan also appeared as a witness in support of the above plea, and also to prove the certificate Exh. D. X. Which was issued three days later, that is to say, on 18-8-1969, and also the O. P.
20. T. D. X./l. Both the trial Court and the learned Judges in the High Court were not impressed by this evidence and had no hesitation to reject it altogether. The learned trial judge who had the advantage of hearing this witness viva voce came to the conclusion that "it was not proved beyond reasonable doubt" that Faqir Muhammad appellant remained in the casualty department during the relevant period. The learned Judges of the High Court after what appears to be a careful appraisal of the evidence also reached the conclusion that the evidence produced in support of the plea of alibi was "inconclusive" and they had "not the least hesitation in ignoring it, considering it as worthless." In reaching that conclusion the learned Judges were impressed by numerous suspicious circumstances surrounding the certificate and O. P. T. Issued to Faqir Muhammad. There were interpolations not only as to the date, but also there was over-writing in the name of the patient as written on the ticket. Because of the gravity of the case and the earnest argument of learned counsel, we considered desirable to see the original register maintained if the casualty ward and also to send for the doctor to enable him to explain, if possible, the circumstances under which he kept Faqir Muhammad in the casualty department on the night between the 14th and 15th August 1969, and also the interpolations in Exh. D. X./1 which were found by the two Courts below suspicious. Two registers were produced which to say the least were maintained in a very perfunctory manner. The relevant entry regarding Faqir Muhammad appeared at serial No. 16718.
21. The same number is transcribed in O. P. T. Though ordinarily it should have been the serial number of the general O. P. T. Register. It is, also, remarkable that the entry is not on the regular sheet, but is on the sheet which is pasted on the card-board binding the register which ordinarily is not used for making the entries. Not only that the name of Faqir Muhammad in English is overwritten while underneath his name also appears in Urdu which is a peculiarity of this entry only. Another extraordinary feature is that entry No. 16718 does not give Faqir Muhammad's father's name and this is in line with the other entries in the register. However, the O. P. T. Exh. D. X./1 Faqir Muhammad's father name "Aqeeq Muhammad" is also given, although it is common knowledge that in the O. P. T.
22. The parentage of the patient is not required to be given, nor is there any printed column in the pro forma of O. P. T. For any such entry. There is yet another suspicious circumstance. Against entry No. 16718, in column No. 4, of register there is an endorsement within brackets to the following effect: "
23. (not admitted) in C. D." No--where a similar endorsement has been found in any other entry in the two registers produced in this Court, When appearing in this Court, Abdus Subhan was specifically asked to give reasons as to why he had made this endorsement against the relevant entry when it was not so required. To this he could give no satisfactory answer. Then according to the certificate Exh. D. X. Faqir Muhammad was brought to the casualty ward at 9 p.m. Entry No. 16718 does not give any such indication. Rather unattached sheet which was found in the same register and on which there are entries from 16719 to 16739, against entry No. 16720 time recorded is 5-40 p.m. Similarly against entry made at serial No. 16729, time recorded is 7-40 p.m. Therefore, if the patient entered at 16729 came to the casualty ward at 7-40 p.m., it is impossible that Faqir Muhammad whose name is entered at serial No. 16718 should have been brought to the casualty ward at 9 p.m.
24. Then as pointed out already Dr. Subhan issued medical certificate Exh. D. X. On 18-8-1969.
25. According to the evidence of the Investigating Officer, Faqir Muhammad was arrested on 15-8- 1969. Therefore, on 18-8-1969, when the doctor issued medical certificate Exh. D. X. Faqir Muhammad could not have been physically present before him. It is important to bear in mind that the certificate was being issued three days later and was pointedly directed to one fact, namely, that Faqir Muhammad was kept under observation in the casualty ward overnight from 9 p.m. On 14-8-1969 till 7 a.m. On 15-8-1969. This should have normally roused the suspicion of the doctor as to why the certificate was being required. When appearing in this Court, he was particularly questioned as to whether he asked the reason why he was being asked to issue the certificate or whether Faqir Muhammad personally was brought before him. To this he gave no satisfactory answer. Then in his cross-- examination he admitted, he did not get the patient's stool tested in the hospital laboratory and was able to prescribe the treatment on the basis of his visual diagnosis.
26. This is indeed remarkable, because the witness did not strike us as an experienced doctor. In 1969, he must have been a fresher in the profession.
27. The plea of alibi can also be tested in another context. If it were a fact that appellant Faqir Muhammad remained in the casualty ward under the treatment of Dr. Abdus Subhan during the relevant night, then he should have been very loud in his protestation of innocence at the time of his arrest and should have at once required the Investigating Officer to ascertain from Dr. Subhan that he remained until 7-00 a.m. On that day. In the casualty department of the Lady Reading Hospital. He did nothing of the kind, And what is even more astonishing is that in his statement before the committing Magistrate, he did not take the plea of alibi and was content with the bare denial. Mr. S. M. Zafar vainly tried to explain this significant omission by suggesting that Faqir Muhammad could not risk disclos--ing his alibi to the Investigating Officer because of the fear that the latter would bring pressure to bear upon the doctor to stay away from the witness box. It was also pointed out that on the basis of the medical certificate issued by Dr. Subhan, Faqir Muhammad was able to secure bail from the High Court. But that was about three weeks after his arrest. Judged from the normal human conduct in the relevant situation, Faqir Muhammad's omission to produce evidence of his alibi during the police investigation cannot be explained on any reasonable hypothesis, other than this that the certificate Exh. D. X. And O. P. T. Were not procured by him until he applied to the High Court for his bail. And this is enough to demonstrate their spuriousness.
28. The cumulative effect of the various extraordinary features noticed above leads to the definite conclusion that the evidence produced by Faqir Muhammad is false and was rightly rejected by the Courts below.
29. For the foregoing reasons, the appeal fails and is dismissed with the only modification that the fine of Rs. 500 imposed by the trial Court on each appellant and maintained in the High Court for the offence under section 49/34, P. P. C. Shall be relatable to the offence under section 302/34, P. P. C.
30. And shall be paid as compensation under section 544-A, Cr. P. C. To the Muslim Law heirs of the deceased.
31. This case has uncovered facts which seriously reflect on the conduct of Dr. Subhan. He is the author of the certificate Exh. D. X. And O. P. T. Exh. D. X./I which appear to be false documents. He has also appeared as a witness in proof of the documents. Having regard to the gravity of the conduct of this witness, we consider it eminently desirable in the interest of justice that the learned Additional Sessions Judge, Peshawar, before whom he appeared or his successor-in-office should consider hi prosecution under section 193, P. P. C. If need be, after notice to him for proceedings under section 476, Cr. P. C. The Provincial Government may also do well, to consider the desirability of taking disciplinary action against Dr. Subhan separately, for it is a matter for serious consideration whether it would be in public interest to retain a doctor with such propensities, as have been brought to light in this case, in public service.
32. To obviate the possibility of tampering with the registers, and the unattached leaf in one of the registrars to which reference has been made earlier in the judgment shall be placed along with certificate Exh. D. X. And O. P. T. Exh. D. X./1 in a sealed cover and sent with the case file to the High Court for further action, if any, by the Additional Sessions Judge and the Provincial Government.
33. It is also necessary to enter a caveat. The above observations touching the conduct of Dr. Subhan have been made only in so far as they were necessary for the disposal of this appeal. These observations will in no wise affect his defence in any proceedings that may hereinafter be initiated against him.
34. A copy of this judgments all also be sent to the Provincial Government.