1. DORAB PANEL, J: Ahmad Khan, his brother Umar Khan and their cousin Naushad Khan were shot dead in village Shah Mansoor in Mardan District on 13th October 1974, and according to the prosecution, the appellant, his brother Sher Azam and his cousins, Sher Alam and Faiz Alam committed these murders. The party of the accused and of the deceased were related to one another through a common ancestor and owned land jointly in village Shah Mansoor. There had been a private partition of land between the two branches of the family, but a couple of days before the occurrence, the party of the accused commenced digging a well in the lands of the deceased. This led to differences of opinion between the two branches of the family. On the day of the occurrence, Ahmad Khan, Umar Khan and Naushad Khan left the village at about 7-00 a.m., for their fields where this well was being dug. They were accompanied by P. Ws. Shamsur Rehman and Khalilur Rehman, the sons of Ahmad Khan, P. W. Nasir Khan, the uncle of these two witnesses, and two other persons. The fields of the deceased were about two furlongs from their houses, and as they were near the fields Ahmad Khan told his sons not to follow them so as not to provoke an incident with the party of the accused, therefore, Ahmad Khan, Umar Khan and Naushad Khan went ahead, whilst the witnesses followed them at a distance. They reached the fields at about 8- 00 a.m., and Umar Khan told Faiz Alam to settle the dispute about the well. But Faiz Alam answered back that be would decide the dispute with the barrel of a gun. The three accused and the absconder then picked up their guns which were lying near the well, and Faiz Alam fired a shot at Umar Khan which hit and killed Umar Khan. .Sher Alam fired a shot at Ahmad Khan which bit and killed him. Noor Alam and Sher Azam each fired one shot at Naushad Khan, which hit Naushad Khan and Naushad Khan succumbed later to his injuries. As the witnesses were unarmed, they ran away towards the fields. The assailants fired more shots and then ran away with their guns. After they had run away, P. Ws. Shamsur Rehman, Khalilur Rehman and Nasir Khan came to the spot and found that Ahmad Khan and Umar Khan had died wbilst Naushad Khan was injured. They placed the deceased and Nausbad Khan on a cot to take them to Sawabi, but Naushad died as they reached the road for Sawabi. P. W. Shamsur Rehman then went ahead and reported the occurrence at Sawabi Police Station. After recording the F.
1. R. P. W. Nek Muhammad Khan, S. H. O.
2. Went to the place of occurrence and commenced investigations. He found sic empties at the place of occurrence which he secured, and after recording the statements of the witnesses, be tried to trace the assailants, but they had absconded and Faiz Alam was never apprehended. However, he managed to arrest the appellant and the two other accused Sher Azam and Sher Alam on the 23rd of October 1974, and the appellant and Sher Alam produced their guns. As the gun produced by the latter was not in working order, only the appellant's gun was forwarded with the empties to P. W.
3. Sayar Khan, a Fire-arm Expert.
4. As Faiz Alam was not apprehended, the appellant and the two others were tried in the Sessions Court, Mardan under section 302/307/34, P. P. C. And in support of its case the prosecution examined P. Ws. Shamsur Rehman, Khalilur Rehman and Nasir Khan as eye-witnesses of the occurrence. These witnesses also gave evidence about the motive for the crimes. Their evidence fully supports the prosecution case and is on the whole consistent with their Police statements and with the F.1. R. The prosecution produced other evidence also, including medical evidence, but it is sufficient to state here that although P. W. Nek Muhammad Khan and A P. W. Bakhtiar Muhammad gave evidence atout the recovery of the appellant's gun and of the empties from the place of o; currence they were not cross-examined by the accused on their evidence about these recoveries.
5. The Forensic Expert was also examined and he proved his report, according to which five empties secured from the place of occurrence matched with the appellant's gun.
6. The appellant and the other accused denied the allegations against them. The appellant pleaded an alibi andfurther stated that he had no motive to commit the murders attributed to him, because he had nothing to do with the sinking of the well, which, according to the prosecution was the cause of the dispute between the parties. In view of P. W. Sayar Khan's report and evidence the appellant was questioned about the recovery of his gun and the empties. As it was his licensed gun, he did not dispute the recovery, but his plea was that either the report of the Fire-arm Expert was false or that Faiz Alam the absconder had used his gun in his absence. He also said that he had been falsely implicated on account of enmity, but neither he nor the accused produced any evidence.
7. The learned Sessions Judge was impressed by the ocular evidence and he was also of the view that it was corroborated by the evidence of the abscondence of the accused and of the recoveries.
8. He, therefore, convicted the appellant and the other accused both under section 302 and under section 307, P. P. C. But he sentenced them to transportation for life on the former count and to seven years' R. I. On the latter count. Fines were also imposed.
9. The appellant and the other accused challenged their convictions in the Peshawar High Court, and, in a careful appreciation of the evidence, the learned Judges of the High Court pointed out that the ocular evidence was -tainted by enmity, therefore, it could not be accepted without corroboration.
10. They were further of the view that the evidence of the abscondence of the appellant and of the accused was of no corroboratory value, and as there was no other corroboration of the ocular evidence, against the other accused, the learned Judges gave them the benefit of doubt. But as the ocular evidence was corroborated against the appellant by the recovery of the gun and of the empties, they upheld the appellant's conviction. As they dissented from the view of the Sessions Court that there were mitigating circumstances in favour of the appellant, they altered the sentence to death. Hence this appeal.
11. Mr. Tariq Jamal criticised the ocular evidence on the ground that I was inimical and interested. The submission is correct, and the three eye--witnesses have admitted that their branch of the family had a dispute with B the party of the accused about the well, and P. W. Nasir Khan, further, admitted that there was a blood feud between the two branches of the family. This, however, only means that the ocular evidence cannot be accepted without corroboration, as held by the High Court.
12. Learned counsel, therefore, submitted that P. W. Shamsur Rehman's delay in lodging the F. I. R. Was fatal to the prosecution case, as the F.
1. R. Had been delayed in order to concoct a false case against the appellant. Now the occurrence took place at about 8-30 a.m. And the F.
1. R. Was lodged at 10-15 a.m. And' a the distance to the Police Station from the place of occurrence was five miles, prima facie, the F. I. R. Had been lodged promptly. But, according to,learned counsel the occurrence had not taken place at 8-30 a.m., but at least an hour earlier, and in support of this plea, he referredto the statement of the eye-witnesses that they and the deceased had left their houses at 7-00 a.m. As the houses were only two furlongs from the place of occurrence, learned counsel's submission was that the statement of the eye-witnesses about the time of the occurrence was false because it could not take an hour and a half to walk about two furlongs. The argument is misconceived.
13. Although the witnesses said ta t they had left their houses at 7-00 a.m., they had, further, stated that they, had reached the place of occurrence at about p 8-00 a.m., and as their explanation was not sought on the question why it look them an hour to reach the place of occurrence, their statement that the had reached the place of occurrence at 8-00 a.m., cannot be questioned.
14. Learned counsel then stated that even if the occurrence took place. After 8-00 a.m., there was a bus service from near the place of occurrence to Sawabi, therefore, P. W. Shamsur Rehman could have reached the Police Station long before 10-00 a.m. The submission assumes that the witness could have boarded a bus and this is a question of fact about which the witness was not cross- examined. Therefore, there is no evidence on which it would be possible to hold that there had been delay in lodging the F. I. R._ Learned counsel then submitted that the ocular version of the occurrence was false, because it was inconsistent with the medical evidence, and in this connection, learned counsel referred us to P. W. Dr. Muhammad Alam Khan's cross-examination. This witness was examined in the Sessions Court merely to identify the signatures of Dr. Muhammad Akram Khan on the post-mortem reports of the deceased. He was nonetheless cross-examined about the manner in which the deceased would have been killed. Be this as it may, the submission was that according to P. W. Dr. Muhammad Alam Khan, eight or nine shots had been fired at the deceased, but as the eye-- witnesses all said that only four shots had been fired at the deceased, the ocular evidence was absolutely false, and in the background of the other infirmities in evidence, the submission was that the so-called eye-witnesses had not been present at the occurrence. We have examined the medical evidence, and we can only observe that both limbs of the submission are misconceived. P.
15. W. Dr. Muhammad Alam Khan has not categorically stated that the assailants must have fired a minimum of eight shots. He has only ventured a tentative opinion. Then, as to the second limb of the submission, the eye-witnesses did not say that only four shots were fired a the three deceased; what they said was that they saw the assailants fire the , four shots at the deceased and that they then ran away as more shots were fired. Obviously, as they ran away, they could not have seen whether these other shots hit the deceased or not, and as that is what the three witnesses explained in their cross-examination, there is no inconsistency between the ocular and the medical evidence.
16. Learned counsel then referred us to other discrepancies in the prosecution case. Thus, for example, a. Piece of a bullet was recovered from the body of Naushad, deceased, according to P. W. Dr. Muhammad Akram Khan who carried out the post-mortems but 'the eye-witnesses had stated that the four assailants had used guns. Again, whilst according to P. W. Shamsur Rehman, the dispute about the well had started about two days before the occurrence, P. W. Nasir Khan said that the dispute bad begun earlier, but that the party of the accused had taken possession of the well a couple of days before --the occurrence. These discrepancies are not such as to justify the rejection of the ocular evidence, but in the background of these discrepancies and l the enmity between the parties, the further submission was that P. W. Shamsur' Rehman, Khalilur Rehman and Nasir Khan were not present at the plat 'e of occurrence because although all the assailants had used guns none of the three eye-witnesses had been hit by a single pellet. But the reason why the eye-witnesses escaped unhurt was that as the deceased had told them to remain behind, they were walking some distance behind them. This mean that the eye-witnesses saw the occurrence from some distance, and further as they ran away when the shots were fired, the fact that they were unhurt is not inconsistent with their presence at the occurrence. However, in view of the inimical relations between the parties and the discrepancies in the prosecution case, it would not be safe to base a conviction on the ocular evidence in the absence of corroboration by independent and reliable evidence. And as rightly held by the High Court, the abscondence of the accused, including the appellant's could not furnish such corroboration, therefore, the learned Judges of the High Court had given the benefit of doubt to the other accused. But as the ocular evidence against the appellant is corroborated by the recoveries and as the report of the forensic expert was positive, the real question of this appeal is whether the evidence of recoveries is sufficient to corroborate the ocular evidence.
17. Learned counsel feebly attempted to challenge the recovery of the gun from the appellant, but even the appellant had not disputed that the gun recovered was his licensed gun. Additionally, as we pointed out earlier, both P. W. Nek Muhammad Khan and P. W Bakhtiar Muhammad said I their examination-in-chief that six empties were recovered from the place o occurrence but neither of these witnesses were cross-examined on their statements. In these circumstances, there cannot be any doubt about the recovery of the empties either, the more so, as one of the empties did not match the gun recovered from the appellant.
18. However, it was not enough for the prosecution case to prove the recoveries. The prosecution had also to prove that the empties matched with the appellant's gun, and for this aspect of the case, it relied on P. W. Muhammad Siar's evidence. The evidence of this witness supports the prosecution case, and although the witness was cross-examined, we were no referred to any statement which could cast doubt on his evidence, therefore) learned counsel referred us to the observations of the Peshawar High Court in Yaqub Shah v. The State (PLD 1975 Pesh. 205). Now it would appear that P.
19. W. Muhammad Siar had been examined as a Fire-arm Expert in Yaqub Shah's case, and because the learned Judges of the Division Bench of the Peshawar High Court had criticised the evidence of this witness, learned counsel invited us to reject the evidence of this witness in the instant case also. But the attention of the witness was not drawn to the strictures passed against him nor was Yaqub Shah's case relied upon by the appellant in his appeal in the High Court. Obviously, as is apparent from the case cited, this was because the strictures passed against the witness had reference to the fact of the case cited and on the other hand, the learned Chief Justice of the High Court who had passed these strictures was a member of the Division Bench which has dismissed the appeal of the appellant before us. In the circumstances the judgment cited is of no assistance to the appellant's case.
20. But unfortunately as there was delay by the prosecution in forwarding the gun and the empties to P. W. Muhammad Siar, learned counsel invited us to reject the evidence of the recoveries on this ground. In support of this submission, learned counsel relied on the observations in judgments reported in Rehman and others v. The State (PLD 1968 Lah 464) and Muhammad Shaji and another v. The State (PLD 1968 Lah 869). Now, in both these cases, evidence of the recovery of the crime weapons and empties was rejected because of the delay in forwarding them to the forensic expert. As this had reference to the peculiar facts of those cases, the observations to the cases cited are not relevant to the instant case. Turning, therefore, to the facts of the instant case, the empties were recovered on 13-10-1974, the gun was recovered ten days later, and the gun and the empties were received by P. W. Muhammad Siar on 19L11-1974 and he said that the same bad been received in sealed parcels. There is also no evidence to show that the empties and the gun were not kept in sealed parcels, as soon as they were secured. The delay in forwarding them has to be considered in this background. There is no evidence that the sealed parcels were tampered with.
21. And, on the other hand, as there might have been an explanation for the delay in forwarding the sealed parcels, the appellant should have cross-examined P. W. Nek Muhammad Khan about the delay in forwarding the gun and the empties. As he did not, the case cited do not help the appellant's case, and we agree with the view of the High Court that the recoveries have been proved. In any event, it is not a case of misreading of evidence or of ignoring any evidence, and the submission of learned counsel relates entirely to the appreciation of evidence. In the circumstances of the case, the evidence of the recoveries furnishes strong corroboration of the ocular evidence and is sufficient to prove the appellant' guilt.
22. The only question which remains for consideration is that of the sentence passed against the appellant and as the Sessions Court was of the view that there were mitigating circumstances learned counsel referred us to P. W. Nasir Khan's statement that Umar Khan, deceased, had "sent a message to the accused party at night time preceding the day of occurrence to settle the dispute by demarcation". In view of this evidence and the fact that the witnesses said that they were at some distance behind the party of the deceased, learned counsel stated that something must have happened in order to provoke the appellant and his party to attack and kill three of their own relations. But this plea of a sudden provocation is not supported by any evidence, and, on the other hand, the main circumstance on account of which the learned Judges imposed the death penalty was that the appellant had participated in a wanton attack in which three people had been killed.
23. These circumstances perhaps escaped the attention of the Sessions Court, therefore, no case has been made out for interfering with the sentence of dear passed by the High Court and the appeal is dismissed.
24. S. ANWARUL HAQ, C. J.-I agree.
25. QAISER KHAN, J.-After going through the judgment of my learned brother Dorab Patel, J. Proposed to be delivered in this case, it is with respect that I have to state that I do not find myself in agreement with it. I therefore proceed to record my own judgment. The facts of the case need not be reiterated as these have been given by my learned brother in detail in his proposed judgment. I therefore straightaway proceed with the discussion of the evidence. The prosecution evidence in the case consists of the following pieces : ,
(1) Ocular testimony of Shamsur Rehman P. W. 9, Nasir Khan P. W. 10 and Khalilur Rehman P. W. 11.
(2) Recovery of six '12 bore empties from the spot out of which five were found to have been fired from the licensed shot-gun of the appellant.
(3) Medical evidence.
(4) Motive.
26. Before discussing the evidence I would like to give the relationship of the parties inter se. This can easily be gathered from the following pedigreetable Khaista Khan Arsala Amir Khan Tawair Bahadur Sadar Jafar Nasir Nadar Khan P. W. 10 Ahmad Umar Azam Nisar r-- KhanKhan Dd. Dd.
27. Sham- Daugh- Naushad -- shad ter Dd. i-----r--, Ibrahim Munir Aziiur Khalilur Shamsur Khan Rehman Rehman Rehman Juma Khan P. W. P. W. 11 P. W. 9 j r- --, Rehmat Ullan Alam Meroz ' P. W. Faiz Alam Sher Khan absconder Alam aced. 1 Sher Noor Azam . Alam aced. Aced.
28. From the above it will be seen that the accused, the deceased and the P. Ws. Are all collaterals, the accused in one line and the deceased and the P. Ws. In another. There was however serious enmity between the two lines. Sher Alam accused had charged Nasir Khan P. W. Under section 307/3251326 of the Pakistan Penal Code while Nasir Khan P. W. Had charged Sher Alam accused for the said offence and the two parties had been bound down. Besides Umar Khan deceased was charged for the murder of Alam Khan an uncle of the accused. But from the evidence on file it appears that this old enmity was not the motive for the murders but that the murders took place over a dispute with respect to a piece of land on which the accused party had started constructing a well and that it was the deceased o party which went to the spot where the occurrence took place. The old enmity between the parties was not therefore the motive for killing the deceased. On the other hand it would show that the P. Ws. Were very muc interested and their statements were to be carefully scrutinised and they were not to be relied upon without independent corroboration even if it is held that they were present on the spot. Now the statement of the Investigating Officer coupled with the site plan prepared by him at the instanc of the P. Ws. Shows that the disputed land was in possession of Faiz Alan absconder alone and this fact also finds supports from the statements o Shamsur Rehman and Nasir Khan P. Ws, who have stated that the disputed land was in possession of the accused. Since it was the deceased party p which went to the spot' it therefore appears that something happened on the spot which resulted in shooting and killing of the deceased. The question of motive for the murder under these circumstances is therefore not of any importance and it cannot be said that the accused had a motive for murdering the deceased.
29. Now coming to the ocular evidence there are a number of contradictions in the statements of the three P. Ws. With respect to their accompanying the deceased to the spot, but leaving aside these contradictions there are a number of facts and circumstances on file which negatives their presence on the spot. It is in their statements that they were told by the three deceased who were their elders not to accompany them so as to avoid any provocation or complication. Under these circumstances they could not therefore have accompanied the deceased. The statements of these three P. Ws. Show that despite being told by the deceased not to accompany the they did accompany them but remained behind at some distance and did not go to the spot. Now this assertion of theirs is belied by their own statements and the other evidence on file. According to them they remained in the field of Nasir Khan and this is also evident from the site plan prepared at their instance. Now this field of Nasir Khan is adjacent to the Q field where the deceased were killed and there was no obstruction of crop etc. In-between the two fields. As a matter of fact they were so close to the spot that they allegedly heard every word that passed between the accused and the deceased. According to the site plan they were only 30 to 40 yards from the spot where the deceased were killed. This would therefore belie their statements that they remained behind to avoid provocation and complication. If they were to remain behind then they would have remained at such a place as not to be visible to the accused.
30. It is in their statements that they started running only when the accused levelled their guns at them after killing the deceased. Now if a volley, of shots had been fired at them as alleged from a distance of 30 to 40 yards by four persons armed with shot-guns then it was not possible for them to have escaped without receiving even a single pellet injury. All of them have stated in clear terms that only four shots were fired at the three deceased one each at Umar Khan and Ahmad Khan and two at Naushad but the statement of the doctor shows that the three deceased had been bit by at least eight shots. There is no doubt that this statement is not of the doctor who performed the post-mortem examination but then the doctor who gave the statement had seen the pictorials of the bodies and he could easily give the number of shots by looking at the site of the injuries. Even a layman by examining the pictorials would come to the conclusion that the three deceased had been hit by at least eight shots. This would therefore clearly belie the statements of the three P. Ws.
31. To the effect that they were present on the spot and saw the accused firing at the deceased.
32. The statement of the doctor further shows that a piece of bullet was recovered from the person of Naushad deceased but there is nothing in the statement of the P. Ws. That any of the accused had used either a rifle or a pistol. According to all the P. Ws. The three deceased were killed at the same place in the field of Ahmad Khan as is evident from the site plan but no blood was found at the place where Naushad fell down after being hit. Naushad was found by the police on the road side at a distance of 185 paces from the place where the other two were found lying dead. It therefore clearly appears that Naushad had started running away and had been killed at a place at a sufficient distance from the place where the other two were killed. The explanation offered by the three P. Ws. For Naushad to be lying on the road side simply does not stand to reason. The P. Ws.
33. Have stated that Naushad had not died and that they put him on a cot for taking him to the police station but that when they arrived at the road side he expired and was left there. Now the statement of the Sub-Inspector shows that Naushad was lying near the road on the ground and not on a cot. It is highly improbable almost impossible that if the P. Ws. Had been taking Naushad on a cot then they would have removed him from the cot and thrown him on the ground after he had expired. Shamsur Rehman P. W.1--went for reporting the matter, according to him, after Naushad had been " taken to the road side but it has nowhere been mentioned by him in his report that Naushad had not died and was being brought on a cot when he expired near the road side. As a matter of fact he has stated in his report that all the three deceased were lying on the spot. This therefore clearly shows that the P. Ws. Were not present on the spot. The deceased and the P. Ws.
34. Were on very much inimical terms with the accused and despite being told by the deceased not to accompany them, the P. Ws. Accompanied the deceased but it is very surprising that all of them went unarmed. It is highly improb--able that if the P. Ws. Had accompanied the three deceased and had kept themselves back at some distance they would have been unarmed. The fact that none of them was armed clearly shows that they never accompanied the deceased. It is also very strange that according to the P. Ws. Shots were s fired at the three deceased by four --persons all using shot-guns but out of the six empties found on the spot five had been fired from one shot-gun which clearly shows that only two guns were used. From the above it is therefore abundantly clear that these three P. Ws. Were not at all present on the spot and did not see the occurrence.
35. Even if it be assumed that the P. Ws. Did see the occurrence they being very much interested could not be relied upon without independent corroboration. Even the learned Judges in the High Court have not relied on their T testimony without corroboration so far as the two accused Sher Alam and Sher Azam were concerned. The learned Judges in the High Court relied on their statements so far as Nur Alam appellant is concerned because their statements according to the learned Judges were corroborated by the recovery of empties from the spot which matched his licensed gun.
36. Now so far as this corroboratory piece of evidence is concerned I am of the opinion that it could not be relied opinion. It is in the statements o the three P. Ws. That after the firing, when the accused left they came to the spot and found that Umar Khan and Ahmad Khan were dead while Nausha was lying injured. Now the occurrence took place in broad daylight and four of the empties were lying in open field where there was nothing. Bu it is very strange that none of the P. Ws. Or the other persons who arrived at the spot and who allegedly helped them in taking Naushad on cot did not notice these empties. If these empties had been left on the spot these would certainly have been seen by the P. Ws. And their mention would have found place in the first information report. The fact that these were not mentioned in the first information report makes their presence on the spot very much doubtful. Furthermore the empties were recovered on the 13th of October 1974 and the gun on the 23rd of October 1974 but these articles were kept by the police with itself for a long time and were sent to the Fire-arms Expert only on the 19th of November 1976 and the Fire-arms Expert gave his opinion on the 15th of April 1975. Under these circumstances in view of the authorities reported in Rehman and others v. The State (PLD 1968 Lah 464) and Muhammad Shaft and another v. The State (PLD 1968 Lah 869) no importance could be attached to such like recoveries.
37. Besides it is in evidence that the land over which there was a dispute and in which well was being sunk was in possession of Faiz Alam absconder. It therefore does not stand to reason that Faiz Alam who was very much interested in the matter fired either no shot or only one shot, the appellant fired 5 shots, and the other two accused who were allegedly present armed V fired no shot. Normally it could only have been Faiz Alam who could have fired more shots as it was he who was directly concerned in the matter and who could possibly have been helped by his real brother but not by his distant cousins. On the other hand if we assume that the appellant did fire five shots on the three deceased then this would clearly belie the statements of the ocular witnesses. The fact that the gun which had been used belong to the appellant is not of much importance as it was a licensed gun and the cousins of the appellant could as well have taken it away with them while going to the field over which there was a dispute with persons who were very much on inimical terms with them.
ORDER OF THE COURT