1. ANWARUL HAQ, J.-The appellant Muhammad Rafiq alias Titai was convicted by the learned Sessions Judge, Peshawar, for the murder of one Muhammad Jan, and sentenced to death. His appeal was dismissed by a Division Bench of the Peshawar High Court, and the sentence of death was confirmed.
2. The incident took place on 8-5-70, at 9-15 p.m. In front of the grocery shop of Abdul Ghafoor (P. W.
3. 8) on the road leading to Sattar Shah Badshah Quarters. It is said that the deceased was standing in front of the shop in the company of Amir Khan (P. W. 9), Akbar Jan (P. W. 10), and Sahib A.I (P. W.
4. 7) had also just arrived there when the appellant turned up from the side of Dubgari and immediately fired three shots with his pistol at the deceased, and ran away. The matter was reported at Police Station Bhana Mani within 15 minutes of the event by Sahib A.I. The appellant could not, however, be arrested until more than a year later on the 29th of May 1971. At the time of his arrest he was found to be in possession of a pistol with four live cartridges in its chamber, and nine other live cartridges on his person.
5. On spot inspection A. S. I. Nadir Khan (P. W. 13) was able to recover two empty shells of .32 bore and a spent bullet of .32 bore which was found embedded in the ice-box at the shop of Abdul Ghafoor.
6. The motive for the crime was said to be the fact that the deceased had been sympathizing with Saiful Malook (P. W. 11) in the security proceedings which were pending between this witness and the appellant owing to an altercation having taken place between them a month or so before the occurrence.
7. The appellant had pleaded not guilty at the trial and denied all the allegations made against him except that he had an altercation with Saiful Malook when the latter was drunk. He explained his absconsion by saying that he had gone to Karachi much earlier than the 8th of May 1970, for earning his livelihood. He asserted that he had been falsely implicated owing to enmity and the witnesses had testified against him because of their relationship with the deceased.
8. The prosecution had placed reliance on the ocular testimony of Sahib A.I, Abdul Ghafoor, Amir Khan, and Akbar Jan. Corroboration was sought to be provided by Saiful Malook as regards the motive, and by the recovery of the crime empties which were stated to have been fired from the pistol recovered from the person of the appellant more than a year after the occurrence.
9. Leave to appeal was granted to re-examine the evidence so as to satisfy ourselves whether the High Court had acted in accordance with correct,. Principles for the safe dispensation of criminal justice, as it was contended that the prosecution witnesses were interested, and satisfactory corroboration) was not forthcoming on the record.
10. After examining the entire evidence brought on the record, with the help of the learned counsel on both sides, and considering the several contentions raised on behalf of the appellant by his learned counsel, we have come- to the conclusion that no justification is made out for our interference in the matter.
11. As already stated the matter was reported to the police within 15 minutes of the occurrence by Sahib A.I (P. W. 7), who has his residence only a few yards away from the spot, and who has not been shown to have any motive whatsoever for falsely implicating the appellant in a capital crime.
12. Sahib A.I was supported by Abdul Ghafoor (P. W. 8), Amir Khan (P. W. 9) and Akbar Jan (P. W. 10).
13. The first named is the owner of the grocery shop in front of which the incident occurred. The other two witnesses are also residents of the locality, and, therefore, their presence at the spot could not be doubted. It is true that Abdul Ghafoor is a nephew of Sahib A.I, but their relationship inter se does not in any manner adversely affect their testimony, because they are not connected with the deceased, nor have they B any animus against the appellant. Amir Khan admitted that he was at one time employed as Munshi of the father of the deceased, but here again this fact does not speak against his credibility, as there was in fact no previous enmity between the deceased and the appellant, the whole incident having arisen owing to an altercation between the appallant and Saiful Malook leading to security proceedings, during which. The deceased seems to have sided with Saiful Malook. It seems to us, therefore, that this is. Not a case where the eye-witnesses could be regarded as interested witnesses in the sense that they had any motive to falsely implicate the appellant. Their evidence should, therefore, be accepted, unless it be shown that it suffers from an inherent weakness or is otherwise improbable.
14. It is submitted by Mr. Ghazanfar A.I Bokhary, the learned counsel for the appellant, that a serious doubt is cast on the veracity of the eye-witnesses owing to the fact that no blood was found at the spot, although according to the medical evidence there was external bleeding from the injuries sustained by the deceased. He also contends that in any case the medical evidence contradicts the eye-witness account, as only two fire-arm injuries were found on the deceased, whereas the witnesses have categorically stated that three shots were fired by the appellant. The learned counsel seeks to re-inforce this submission by pointing out that only two .Crime empties were found at the spot.
15. The autopsy of the dead body of Muhammada Jan deceased, as conducted by Dr. Muhammad Iqbal Lodhi, showed that there was a fire-arm entrance wound -- " x -- ", cavity deep, on the back of the right side of the chest, and another entry wound of similar dimensions on the right lateral side of the hip joint. There was also an exit wound corresponding to the first injury. The bullet head entered through wound No. 1 and had come out through wound No. 3 after perforating right pleura, lung, diaphragm and rupturing the liver and the spleen. A bullet was also found embedded under the left hip bone which was extracted by the doctor. The clothes worn by the deceased were blood-stained, there were cuts corresponding to the wounds, and charring was also present around both the entry wounds.
16. It will be seen that the external bleeding had stained the clothes worn by the deceased. It is, therefore, possible that the blood actually did not flow on to the ground, so as to enable the Investigating Officer to collect blood-stained earth from the spot. The incident having been reported without delay at the Police Post, which was situated at a distance of only C two furlongs from the scene of offence, there is no reason to suppose that a disinterested person like Sahib A.I would deliberately change the venue of the crime. It seems to us, therefore, that the absence of blood stains. On the ground in front of the shop of Abdul Ghafoor does not falsify the prosecution case in this regard.
17. It is correct that all the eye-witnesses have stated at the trial that the appellant fired three shots, but a perusal of their statements shows that they did not assert that all the three shots hit the deceased. All that they have said is that the appellant fired three shots with his pistol at Muhammada Jan, as a result of which the latter fell down injured on the ground. From the medical evidence it becomes clear that only two shots hit the deceased. The third shot seems to have hit the ice-box kept in the front 'part of the shop of Abdul Ghafoor, as a spent bullet was extracted by the Investigating Officer from the lid of the ice-box. We are unable to accept the contention raised by Mr. Bokhary that it must be the same bullet which came out of the body of the deceased, as that bullet must have lost its velocity by the time it came to bit the ice-box. It appears to us that two bullets hit the deceased and the third bullet hit the ice-box. It is correct that only two crime empties were recovered from the spot, but that does not necessarily mean that the third shot was not at all fired. The weapon of offence could not immediately be seized by the Police, as the appellant had absconded for pearly a year, and it cannot, therefore, -be said whether the third empty remained stuck in the pistol. However, one thing is certain, viz., that three shots were indeed fired, two of which hit the deceased and the third went astray and hit the ice-box kept at the spot.
18. It is next submitted by the learned counsel, on the authority of Modi and Burrard, that charring of the entry wounds would show that the pistol was fired from a range of about 6", while the witnesses have fixed the distance between the appellant and the deceased at between 2J to 3 paces or between 5 to 7J feet, thus showing that they did not in fact see the 1 occurrence. We regret we cannot accept this argument for the reason that, in the first place, it is too much to expect that illiterate or semi-literate witnesses would be able to indicate the distance in question with scientific exactitude; in the second place, as observed by Burrard :- "If the shot is fired with a cartridge loaded with black powder the blackening range is increased because of the smoke. On combustion black powder gives only about 44 % of gaseous and 56 % of volatile solid products, and it is this large percentage of volatile solid products, of combustion which cause the heavy smoke. And the smoke is far more potent to deposit blackening than the gases generated by the combustion of nitro powders"-(The Identification of Firearms and Forensic Ballistics, "All self-loading pistol cartridges are smokeless, but revolver cartridges can be obtained loaded with black powder and it should be remembered that it is possible by filing down the rim to fire the revolver cartridges in a self-loading pistol of the correct calibre. So, the existence of smoke cannot be regarded as proof positive that a self-loading pistol was not used."
19. These observations go to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missile: We have no information in the present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who are otherwise dependable and natural witnesses, cannot be cast aside merely on the basis of the theoretical opinions relied upon by the defence.
20. Directly relevant in the present context are the observations made by this Court in Usman Khan v.
21. State (PLD 1969 SC 293 ) namely:- "Of late, a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While one could appreciate the anxiety shown by the Judges to test the credibility of the eye-witnesses with reference to the circumstances attending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these matters. It is desirable therefore to summon the doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert."
22. As a result of the above discussion, we are of the view that the Courts below were right in holding that there was nothing inherently improbable or contradictory in the account of the incident given by the eye-witnesses who were residents of the locality and had no motive whatsoever to give false evidence against the appellant. We may observe that although it was contended that the witnesses as well as the deceased both belonged to the Mahmond tribe, yet this was not correct as Akbar Jan (P. W. 10) was a Shinwari by case. The place of occurrence was satisfactorily fixed in this case by the presence of the crime empties and the bullet embedded in the ice-box lying at the shop of Abdul Ghafoor, even though no blood was found on the ground. In these circumstances, the conviction recorded against the appellant was well-founded on the basis of the ocular testimony.
23. However, corroboration was also forthcoming by reason of the fact that the pistol found on the person of the appellant, at the time of his arrest one year after the incident, was found to match the crime empties. On this point there is the evidence of the Ballistic Expert, Bashir Ahmad, who appeared as P. W.
2. The learned counsel for the appellant argued that the crime empties were of '32 bore, whereas the pistol was of 7'65 mm, and, there ore, the two could not match. This apparent conflict was, however, resolved by the learned Advocate-General by referring us to the observations appearing at p. 68 of "Firearm Investigation, Identification and Evidence" by J. S. Hatcher, who has categorically stated that the English and the American calibres described as '25, '32 and '38 are equivalent to 6'35 mm, 7'65 mm and 9 mm calibres by European standards. It is interesting to observe that a Sub-Inspector, Imtiaz Ahmad Khan (P. W. 6), who had apprehended the appellant on the 29th of May 1971, and recovered the pistol from his person, noted in the recovery memo. (Exh. PX) that the pistol was automatic '32 bore, and then he proceeded to copy the make as well as the bore 7'65 mm as written on the weapon itself. It only shows that our Police officers, trained in the British tradition, are more familiar with the calibres as mentioned in inches as against their measurement in millimeters. It is clear, therefore, that the crime empties were rightly held to match the weapon recovered from the possession of the appellant.
24. Another piece of valuable corroboration was of course provided by the absconsion of the appellant. As already stated, he was arrested almost a year after the occurrence. The explanation given by him, viz., that he had left the village much before the occurrence for earning his livelihood in Karachi was rightly rejected by the Courts below, as there was evidence to show that only three days before the occurrence he and the witness Saiful Malook had attended the Magistrate's Court in connection with the security proceedings which had been started against them by the Police, and which were compromised on that day.
25. Before we close, we might also mention the fact that the witnesses as well as the Investigating Officer have asserted that two electric bulbs were burning at the relevant time, one at the shop of Abdul Ghafoor, and the other at the adjoining tea-stall. There was thus no difficulty in identifying the assailant, even though the occurrence took place after sunset.
26. On the basis of the ocular evidence, as supported by the matching of the crime empties with the pistol recovered from the person of the appellant, and the incriminating circumstance provided by the absconsion of the appellant for over a year, we are satisfied that the appellant has been rightly ,convicted of the murder of Mohammada Jan. The learned counsel attempted to suggest that the shooting of the deceased was preceded by an altercation and exchange of abuses between the deceased and the appellant, thus providing an extenuating circumstance in the latter's favour, but there is no support on the record for such an argument. The utmost that appears from the evidence is that immediately before firing the shots the appellant shouted at the deceased asking why he had dared accompany Saiful Malook to the Court. Before the deceased could have a chance to reply, he was shot dead. The murder was thus a cruel and wanton act, calling for the maximum penalty provided by law.