' ABDUR REHMAN KHAN, J.---The appellant was found guilty under section 302, P.P.C. Of the murder of Naib Khan by the learned trial Court of Sessions Judge, D.I. Khan and by judgment dated 13-10- 1991 he was awarded life imprisonment and a fine of Rs,10,000 or in default of payment to spend more two years' R.I. He appealed against this judgment in High Court, Peshawar, and a learned Division Bench through judgment passed on 1-2-1994 dismissed the appeal. Petition for leave to appeal was filed against the impugned judgment of the High Court in which leave was granted on 27-11-1994. The relevant portion of the leave granting order reads: "The petitioner has been convicted in the case on the sole testimony of Nasrullah Khan, S.H.O, who was complainant in the case, and who according to the prosecution, reached the spot after commission of the crime and was informed by the people who had gathered there that the petitioner had escaped after committing the crime. The said Nasrullah Khan then chased the petitioner and got hold of him at some distance alongwith a revolver. The admitted position in the case is that there was no eye-witness in the case who has seen the petitioner committing the murder. The petitioner has been convicted on the basis of his alleged extra-judicial confession before the police officer and circumstantial evidence of recovery of crime weapon from the possession of the petitioner at the time of his arrest from the place which was at a little distance from the scene of occurrence. The learned counsel for the petitioner has pointed out some glaring contradictions in the statement of the S.H.O. Which prima facie appear difficult to be reconciled with the prosecution story. We, accordingly, grant leave to appeal to consider whether principles of safe administration of justice laid down by the superior Courts in criminal cases were followed in the case while appraising the prosecution evidence."
2. The background under which the appellant was arrested and indicted in the case was that (P.W.5) Nasrullah Khan, S.H.O., P.S Cantt., D.I. Khan alongwith A.S.I. Sardar Baldish (P.W.4) A.S.I. Hewat Khan and some Police Constables were patrolling the area in a Datsun when he heard a fire shot.
He rushed towards the place where in front of Royal Hotel on the road side he found a man murdered. The people there informed him that the man who committed the murder had decamped towards Dinpur side. They chased that man whom they could see running. He was overpowered at some distance with a .30 bore pistol in his hand which smelt of fresh discharge.
This man identified himself to be Akhtar Muhammad (appellant) and gave the name of the deceased as Naib Khan and disclosed the immoral relation of the deceased with the wife of his brother as the cause of murder.
3. To establish the guilt of the appellant, the prosecution examined (P.W.1) A.S.I. Of Police who had incorporated the Murasla into F.I.R. And had registered the case. P.W.4 is Sardar Bakhsh who was then posted as A.S.I. And who had accompanied the S.H.O. Nasrullah Khan (P.W.5) on patrol duty.
He stated that patrolling party heard a fire shot and when reached the spot they found a person lying killed and they were informed that the killer ran towards Dinpur side. They chased that man who was arrested near an ice factory having a pistol in his hand which was taken into possession by the investigating officer through recovery memo. Ex.P.C. Similarly from the spot blood-stained earth and five empties of .32 bore were picked up through the recovery memo. Exh.PD. He witnessed both these memos. As marginal witness. The Investigating Officer Nasrullah Khan, S.H.O.
Was examined as P.W.5 who reiterated the contents of the F.I.R. Regarding the hearing of firing while on patrol duty, having been informed by the people of the assailant, arrest of the accused alongwith pistol, recovery of five empties and blood from the spot. He also explained various steps taken in the completion of the investigation. P.W.6 is Dr.Muhammad Zajidullah who conducted the autopsy of the deceased and found 3 entrance and one exit wounds on his body.
4. The accused when examined under section 342, Cr.P.C. Explained his arrest in the case in this manner "I am innocent and have falsely been charged. The fact is that I had come from Waziristan to get myself examined by the doctors because in those days, I was not feeling well. I was staying in the Hotel on Dinpur Road. One day when I was returning to my Hotel after having answered the call of nature in the open fields, I found P.W. Bajan, brother of deceased alongwith 2/3 foot constables of the police. On my reaching there, I was directed by the Police Constables to accompany them to Police Post No,3 situated in Pawinda Gate. So, I went there and thereafter I was involved in the present case".
5. The learned trial Court and the learned High Court found the appellant guilty on the basis of the following items of evidence:--
(a) Arrest of the appellant alongwith pistol which smelt of fresh discharge while running from the spot where the deceased was lying murdered.
(b) Recovery of empties from the spot of the same pistol which was recovered from the appellant.
(c) The opinion of the Forensic Science Laboratory that empties recovered from the spot matched the pistol taken into possession from the appellant.
(d) Medical evidence supporting fire-arm injuries on the person of the deceased.
(e) Testimony of P.W.4 A.S.I. Sardar Bakhsh and P.W.5 Nasrullan Khan, S.H.O. Who were on patrol duty of the area and having heard the fire shot reached the spot and when informed about the fleeing of the accused from the spot chased him and arrested him at some distance alongwith the crime weapon.
6. The learned counsel while arguing for the appellant stressed that the testimony of P.W.4 Sardar Bakhsh, A.S.I. Should be excluded from consideration as in his statement under section 161, Cr.P.C.
There was no mention of his being a member of the 'Gasht party' and of his having arrested the accused. This argument would in no way advance the case of the appellant as presence of this witness is mentioned in the Murasala which was sent from the spot by the investigating officer for the registration of the case. Moreover, it was all along the case of the defence that the Murasala sent from the spot, statements of the witnesses recorded under section 161, Cr.P.C. Preparation of site plan and recovery memos. And all other documents which were prepared on the spot, were in the handwriting of this witness and which was admitted by the witness to be correct. Moreover the tenor of the cross-examination of this witness and that of the Investigating Officer would show that the presence of this witness on the spot at the relevant time has not been challenged. It is admitted by the defence that all the documents prepared on the spot were in the handwriting of this witness and it could also not be controverted that this P.W. Had witnessed the recoveries effected from the spot as a marginal witness. Therefore, the omission of certain facts from his police statement, when his presence on the spot is proved, from all other documents and attending circumstances is not that much consequential so as to negate his presence. It may be that the investigating officer did not consider it proper to incorporate all these things in the statement of this witness when this witness had prepared all the relevant documents on the spot. It was next submitted that Hewat Khan, A.S.I. Has not signed the recovery memos. In spite of alleged presence on the spot. The veracity and execution of recovery memos. Have been proved by one of the marginal witnesses P.W.4 and the Investigating Officer P.W.5, therefore, there was no legal compulsion for the prosecution to produce the said witness. It was also pointed out that instead of taking the accused to the spot after his arrest why was he confined in Police Post. It could not be shown what benefit was intended by submission, however, it is understood that the accused was confined in Police Post for his safety as his bringing on the spot would have exposed him to harm either by the mass or by the relatives of the deceased. It was also argued that although brother of the deceased Bajan by name has been shown by (P.W.4) and (P.W.5) to have come to the spot after the occurrence and that his statement was also recorded under section 161, Cr.P.C. But still he was not produced as a witness. It could, however, not be argued that Bajan was not supporting the prosecution rather the tenor of the submission was that Bajan was instrumental in manipulating the involvement of the appellant in this false case. This submission overlooks the fact that if Bajan had been instrumental in the arrest and implication of the appellant in the case then he could have easily been made as the eye-witness as there was no impediment in his way to give eye account of the occurrence if he was so interested in the fabrication and concoction of the case. In this context it was also submitted that Bajan could have been produced to prove the motive. The benefit on account of failure of the prosecution to prove the motive has been given to the accused in the shape of lesser penalty as it was held that motive for the crime was shrouded in mystery and beyond that the absence of motive could not absolve the appellant from the consequences of the otherwise proved offence. It was next pointed out by the learned counsel that there is no substantive evidence in the case and that one piece of tainted evidence can hardly corroborate the other blemished evidence in the case. It was in this context pleaded that the recovery of pistol, empties, and the laboratory report of its matching are not sufficient to bring home the major charge of murder against the appellant. To enforce his submission reliance was placed on the following cases:
1. Nazir v. The State (PLD 1960 (W.P.) Lahore 189).
2. Khurshid Ahmad v. Kabool Ahmad and others (PLD 1964 (W.P.) Karachi 356).
3. Muhammad Noor and another v. Member-I, Board of Revenue Balochistan and others (1991 SCM R 643).
4. Jan Muhammad and 3 others v. The State (1969 PCr.LJ 588).
' The learned counsel, however, did not elaborate as to what is meant by substantive evidence in the circumstances of this case. If the word ' substantive' is taken in its dictionary meaning then it would mean and convey to be that which is with substance, definite, real, expressing existence and is of considerable amount. We, therefore, fail to understand as to why the arrest of a person by unbiased police officers just after the occurrence within a short distance of the scene of crime with a pistol in his hand giving fresh smell of discharge, which according to laboratory report, matched the empties recovered from the spot and ultimately supported at the trial by the confidence inspiring testimony of those who arrested the accused, would not constitute substantive or direct evidence of the crime. We are satisfied that the police officer who caught hold of the accused with a pistol had no axe of their own to grind or any malice of the type to go to the extent of involving the appellant in a capital offence. The judgment reported as PLD 1960 (W.P.) Lahore 189 relates to inadmisibility of extra-judicial confession before a person in authority. There is no second view about this legal proposition but in the present case the admission of guilt by the appellant to the police was excluded from consideration by the trial Court as well as the High Court. In the case appearing in PLD 1964 (W.P) Karachi 356, the deposition of interested witness was not believed without corroboration. In the third case it was held that the appellant in that case could not be convicted on the basis of the following evidence:
(1) existence of enmity between the parties;
(2) abscondence of the appellants; and that
(3) the fathers of the appellants had admitted the guilt of their sons, compromised the matter on the payment of a sum of Rs,80,000 but then resiled from the same.
' In the last case the evidence of related and inimical witnesses was held not to be sufficient for conviction and expert evidence was declared of corroboratory value but by its own force insufficient for a finding of guilt. It is, thus, obvious that the rule laid down in the said cases is relevant to the facts of those cases and cannot be applied to this case on account of their distinguishable facts.
7.We find no legal flaw in the finding of guilt arrived at by the Trial Court and High Court and, accordingly, dismiss this appeal.