1. MUHAMMAD HALEEM, J.-This appeal is by special leave against the judgment dated 7-3-1975 of a Division Bench of the Lahore High Court by which Criminal Appeal No. 355 of 1974 was dismissed and death sentence confirmed.
2. The appellant was tried by the Additional Sessions Judge, Mianwali for the murder of Tehsin A.I Zaidi, Manager of 'C' Tunnel, Makarwal Coal Mine, District Mianwali, convicted under motion 302 of the Pakistan Penal Code and sentenced to death and to pay a fine of Rs. 500 or in default to suffer rigorous imprisonment for six months in case the death sentence was not confirmed. He was also ordered to pay Rs. 1,500 as compensation to the legal heirs of the deceased under section 544-A, Cr. P. C. By judgment dated 30-4-1974.
3. It was the prosecution case that at 10 a.m. On 13-6-1971 while the deceased was is the office of the 'C' Tunnel, the appellant came there and enquired from him as to why he had stopped the donkeys from carrying coal dust from the 'C' Tunnel to which the deceased replied that there was no need now for removing the coal dust and, therefore, his donkeys would not be required for that purpose, The deceased further told him that he had written to the Senior Mining Engineer for according sanction for carrying water for the labours of Miranwal Coal Mines and in case this sanction was received his donkeys would again be needed for this purpose. The appellant was, however, not satisfied and stated that injustice had been done to him by the deceased And thereafter left the place in anger. A little later the deceased was seen going in his jeep by Niaz Badshah a Chowkidar on duty at the gun-powder magazine near the office of the 'C' Tunnel. At some distance from the p(,at he saw the appellant running towards the Jeep from the side of the water tank and raising his hand upon which the deceased stopped the Jeep and as he drew near the deceased, he fired at him who on, being hit slumped on the seat. The incident was also witnessed by Gul Zaman Shah and Abdul Wahid Shah. Niaz Badshah and the other two then went to the spot and saw the deceased lying dead and his body protruding out of the Jeep. It was taken out and placed on the ground.
4. Ahmed Khan an employee of the Colliery also arrived at the spot and he was informed by Niaz Badshah that he saw a person firing at the deceased as he stopped the Jeep at his behest. Ahmad Khan hastened to his office and informed Chowdhery Abdul Majeed about what he had learnt from the Chowkidar. At his dictation his Clerk Ghulam Hussain wrote the statement which he signed. This report was forwarded to the Incharge, police post, Makarwal which was treated as F. I. R. In that statement the presence of Ghulam Muhammad, Muhammad Anwar Niaz Badshah, Abdul Wahid Shah and Atta Muhammad was also disclosed.
5. Muhammad Akbar repaired to the spot and secured blood-stained earth from there besides other articles, e.g. a piece of Namda and a button from the Jeep and his personal effects.
6. The medical evidence disclosed that the deceased suffered a gunshot injury from a very close range with four wounds of exit.
7. The appellant absconded and he was arrested on 9-7-1971 by Noor Muhammad, a C. I. A. Inspector from a bus which came from Miran Shah, on suspicion of being a smuggler. A case was registered against him under section 13 of the Arms Ordinance as he wet found in possession of an unlicensed knife. Subsequently, the Police Inspector learnt that he was wanted in a murder case of Police Post, Makarwal. Accordingly, he was transferred from Bannu Jail to Police Station Kamar Kushani.
8. Leave to appeal was granted infer alia on the ground as to whether the Courts below were correct in fixing the identity of the appellant when his name did not transpire in the First Information Report which was lodged by Ahmad Khan after being informed of the incident by the alleged eye witnesses.
9. The trial Court accepted the ocular testimony of Gul Zaman f P. W. 10), Niaz Badshah (P. W. 11) and Abdul Wahid Shah (P. W. 12) and the abscondence of the appellant and convicted him accordingly.
10. As to the contention that the eye-witnesses had not disclosed the name of the appellant, to Ahmad Khan and, therefore, his subsequent implication was not free from doubt, the trial Court repelled it and observed thus: "The most forceful attack of the accused it, with regard to silence of the report Exh. P. A. About the identity of the accused. If the P. Ws. Had actually seen the occurrence and knew the name of tote accused, there was nothing to prevent them in divulging the fact and naming the accused at the right moment. It is however to be borne in mind that the poor fellow who lost his life was living all alone at Makarwal and belonged to some far off place. He had no local affiliations and contacts. In the hearts of the employees of the P.1. D. C. There was no love lost for Mr. Zaidi. On the other hand, all the eye-witnesses were strictly local and the accused also was a local. Again the accused appeared to be a desperate character and a formidable foe. Every body around was in the grip of horror, which must be prevailing in the atmosphere, immediately after the murder, which was committed in a most abrupt manner and most callous and cruel fashion. All who were present there and who heard about it, must have terribly been shocked and frightened. Against this perspective, it Ahmad Khan, who in an unprecedented hurry left the spot, was not made aware of the details of the occurrence and was not let known the name of the accused, I would not be surprised about all that.--- It further held that it was a broad daylight murder in which case his identity 'could not remain a mystery' and it was far fetched to assume that the witnesses would leave the real culprit and instead implicate him in the crime.
11. On appeal and reference the learned Judges accepted the explanation of Niaz Badshah, namely, that he did not disclose the name of the appellant for the reason that he was afraid of the appellant as he belonged to Sultan Khel tribe and the Colliery area was dominantly inhabited by this tribe and it was only when he was assured by the Department that he disclosed his name.
12. Accordingly, they believed his evidence. As for Gul Zaman, the learned Judges held that he was a natural witness and his testimony alone was sufficient to bring home the guilt to the appellant.
13. They also accepted the testimony of Abdul Wahid Shah and the evidence of abscondence led at the trial and upheld the conviction.
14. The learned counsel for the appellant raised the same contention as was raised before the Courts below that the failure to mention the name of the assailant curs a serious doubt on the identity of the culprit. It is true that the name of the appellant was not disclosed in the First Information Report but it did transpire soon after the lodging of the F. I. R. Both (3ul Zaman and Nina Badshah were examined at the spot by Malik Allah Ditta, Station House Officer and his name was disclosed by these witnesses. It is significant to note that Niaz Badshah was confronted in some respects with his statement recorded under section 161, Cr. P. C. But no suggestion was put to him that he had not disclosed the name of the appellant in his statement. He has also given an explanation for not disclosing it to Ahmad Khan which was believed by the Courts below. He is by case a Khattak and belongs to Kohat District and denied the suggestion that he was one of the persons who secured the release of some women belonging to the Khattak tribe who were confined by the appellant and his tribesmen In their houses. There is no other material on record to establish that he was one of the rescuers and as such the allegation does not establish his malice against the appellant.
15. Therefore, he could not have had any reason to falsely implicate him.
16. Gul Zaman is another independent wiliness to whom no question was put as to whether or not he had given out the name of the appellant in his 151, Cr. P. C. Statement though he was cross- examined at length. He had seen the appellant at 7 a.m. On the fateful day as he had come to take tea at his Tea Stall carrying a gun. Again at 10-30 a.m. He had seen him near, the Tank of water at a distance of 25 to 30 Karams from his Tea Stall and it was soon after that he saw him firing at the deceased who was proceeding in his Jeep. In these circumstances it is difficult to believe that he was not aware of the identity of the assailant.
17. Abdul Wahid Shah, the third eye-witness has also deposed to having seen the appellant firing at the deceased, as he was proceeding to the Tea Stall of Gul Zaman. From the questions put to him in cross-examination it does not transpire that he was not aware of the name of the assailant. He was also examined by the police but in cross-examination no question seems to have been put to him is regard to the identity of the assailant. It is also not believable that he would falsely implicate the appellant because of an indirect enmity alleged against him, namely, that there was on exchange of fire between the appellant and his maternal uncle Muhammad Noor who bad abducted Mst. Tasleem Bibi, a ---phoophi--- of Noor A.I Shah, his relative and Noor A.I Shah anti his companions. He is by case a Syed and was in no way concerned with the affair in which the appellant and his tribesmen had confined some women of Khattak Tribe of Chauntra.
18. That immediately after the occurrence efforts were made to apprehend the appellant but he had absconded. This could not have been unless his identity was known. In the circumstances the Courts blow were right in holding that there was no doubt in regard to the identity of the appellant.
19. The last piece of circumstance is his abscondence which is established beyond doubt from the efforts made to secure his arrest and the initiation of proceedings under sections 87 and 88, Cr. P.
20. C. The Courts below have correctly assessed the evidence and rightly convicted and sentenced the, appellant.
21. I would dismiss the appeal.
22. ANWARUL HAQ, J.-I agree.
23. MUHAMMAD AFZAL CHEEMA, J.--I agree.