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Criminal Appeal No. 67 of 1979, decided oh 22nd January,1986.
(Against the judgment and order of the Peshawar High Court, Peshawar, dated 21‑10‑1978 and Criminal Revision No. 44 of 1978).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302/34‑‑Leave to appeal granted to examine whether testimony of interested witnesses which had been discarded with regard to other companions of accused had received required corroboration to establish his guilt.
‑‑‑S. 302/34‑‑High Court not taking note of discarded part of prosecution case wherein acquitted accused was attributed role of picking up revolver and firing at a temple wherein his co‑accused has taken shelter and argument that was sought to be built on it‑‑Motive in case not providing any corroboration‑‑No planning or pre-concert existing on part of accused and his associates‑‑Identification of each one of accused by witnesses not possible in circumstances of case‑‑Implication of accused appearing on account of tendency of complainant party to rope in relatives and associates indiscriminately and due to these factors prosecution case leaving a reasonable doubt so far as credibility of interested witnesses was concerned‑‑Accused given benefit of doubt in interest of safe administration of criminal justice and his conviction and sentence set aside.
‑‑‑S. 302‑‑Evidence Act (I of 1872), S. 102‑‑Burden of proof‑ Prosecution alleging that a large number of persons fully identified and known participated in occurrence‑‑Burden of proof, held, was on prosecution to establish identity and implication of each.
Woolmington v. Director of Public Prosecutions 1935 A C 462; Safdar Ali v. The Crown P L D 1953 F C 93 and Muhammad Aslam alias Aslam v. The Crown P L D 1953 F C 115 rel.
‑‑‑S. 302/34‑‑Trial Court after having made a careful analysis of prosecution case and given due consideration to everything that could be said in favour of defence, coming to conclusion that statements of two eye‑witnesses, in so far as they implicated some accused, were correct and worthy of credit‑‑Statements of prosecution witnesses consistent and not shaken by lengthy cross‑examination‑‑Witnesses had neither prevaricated nor made any improvement for which their testimony could be discredited‑‑Ocular testimony corroborated by medical evidence as well as by other prosecution witnesses‑‑Recovery of various articles at place of occurrence lending support to prosecution case‑‑Assessment of evidence of prosecution witnesses made by trial Court and appellate Court in so far as it related to guilt of accused, held, acceptable in circumstances‑‑Conviction and sentence maintained.
(
‑‑‑S. 302‑‑Abscondence‑‑Corroboration‑‑Tendency of complainant party to indiscriminately rope in relatives and associates of accused‑ Abscondance, held, would not provide necessary corroboration particularly where an absconder admitted that he was evading his arrest on account o false implication in case. ‑‑[Abscondence].
‑‑‑S. 302‑‑Motive‑‑Need not necessarily to be strong‑‑Even attrocious crimes are committed due to very slight motives, not merely from impulse or revenge but to gain a small pecuniary advantage rind to drive off a time‑pressing difficulty.‑‑[Motive].
‑‑‑S.302‑‑Motive‑‑Evidence of guilt of accused even if available, would be a circumstance corroborative of case against him.
Rammun v. E.7.L84; 94, IC. 901; 1926 L 88 and 27 Cr. L J 709 rel.
‑‑‑S. 302‑‑Falsus in uno falsus in omnibus (false in one thing, false in all), doctrine‑‑Generally such doctrine, held, could not safely be applied to evidence of witnesses where evidence was substantially correct, simply because there are some deliberate falsehoods in it ‑‑[ Maxim ].
Qazi M. Salim Khan, Senior Advocate Supreme Court and Muhammad Afzal Siddiqui, Advocate‑on‑Record (absent) for Appellant.
Rao M. Yousaf Khan, Advocate Supreme Court for the A.G., N.‑W.F.P. for the State.
Date of hearing: 19th November, 1985.
Leave to appeal was granted to the convict under section 302/34, P.P.C. to examine whether the testimony of the interested witnesses which had been discarded with regard at the other companions of the appellant had received the required' corroboration to establish his guilt.
The prosecution case against the appellant, his father Khan Hussain, an absconder, and five companions who stand acquitted was that a few months before the occurrence for which they were charged, Kafayatullah another son of the deceased Rehmatullah had been fired at by Khan Hussain the absconding accused. On trial, Khan Hussain had been acquitted. This provided the background of enmity between the two families.
On the 28th of August, 1976 at about 10 a. m. Rehmatullah deceased alongwith his son Hidayatullah (P.W.12) and Muqeedullah, a cousin (P.W.13) were in bazar Nawan Killi, District Mardan on way to the cattle fair. When they reached near what was earlier a temple or Dharamsala and was then being used by Khan Hussain, the absconding accused, as his residence or Baithak the appellant and Khan Hussain fired with a double barrel gun one shot each at the deceased causing him fire‑arm injuries resulting soon in his death. They alongwith their other companions took cover in the temple and from there fired at the complainant party resulting in the death of another person Dilbar and fire‑arm injuries to Khan Sher (P.W.14), Khurshid (not produced), Bubar (not produced) and Abdul Hakim (P.W.10) who was found mentally not sound enough to make a coherent statement at the trial.
Muhammad Nisar Khan (P.W.15) S.I., Additional S.H.O. Police Station Kalu Khan at a distance of about 2J miles from bazar Nawan Killi received information on telephone that a firing was taking place in the bazar. He made an entry in the daily diary to this effect, collected police strength and went to the place of occurrence. He recorded at 11 a.m. a report lodged by Hidayatullah (P.W.12) on which a case was registered at the police station at 12‑30 noon. In this report, Hidayatullah charged the appellant and his father for effectively firing at Rehmatullah. Muhammad Said, the acquitted accused was charged for having removed the licensed revolver of the deceased, and all the accused for indiscriminately firing at them after taking cover in the temple thereby causing the death of Dilbar and injuries to Khan Sher, Khurshid, Bubar and Abdul Hakim. Muhammad Nisar, S.I. prepared inquest report of Rehmatullah and Dilbar, examined the injured and sent them for medical examination. He recovered from the spot card boards, five deformed pellets and also found marks of pellets' on lamp shade and on the door of the shop of Abdul Halim.
As no empty was recovered, the gun recovered from Kamal, the acquitted accused, was not sent for further matching. The revolver of Rehmatullah said to have been removed from the spot was not recovered. Lady Dr. Farkhanda Jadoon (P.W.11) performed autopsy on the dead body of Hap Rehmatullah and found following injuries:‑
"(1) 9 entrance fire‑arm wounds each " x " situated at a distance of 1‑2" from each other spread on right half of abdomen.
(2) Entrance fire‑arm wounds 4 in number situated on right gluteous (right buttock) at a distance of 1‑2" from each other. 9 pellets recovered from the abdominal cavity and muscles."
She extracted 9 pellets weighing 475 grains from the dead body of Rehmatullah. The autopsy of Dilber revealed the following injuries:‑
"(1) Entrance fire‑arm wounds on back of abdomen left lumber region each " x ".
(2) Exit F.A. wound in front of abdomen left lumber region " x .
(3) Entrance F.A. wounds in middle of right scapula size " x ".
(4) Exit F.A. wound anterior part of chest (pellet recovered from it just close to the right nipple). Size " x " .
(5) Entrance F.A. wound " x " situated on the front of left leg at its middle.
(6) Entrance F.A. wound situated in the middle of right buttock x ".
(7) Exit F.A. wound " x " situated on anterior superior iliac spine."
One pellet weighing 69 grains was recovered from his dead body.
Khan Sher (P.W.13) had the following injuries on his person:‑
"(1) F.A. entrance wound " x " situated on the posterior part of right are mid‑point.
(2) Exit F. A. wound 1" inward to No.1 at the same level. The wound is not deep under the skin from No. l to No. 2.
(3) Grazing 1" x 1" on middle lateral aspect of right side of chest."
Abdul Hakim, Khurshid and Bubar had also fire‑arm injuries on their person.
The appellant and his companions could not be‑ arrested and they were declared absconder and proceeded against accordingly. The appellant was, however, arrested on 28‑12‑1976 and his father was arrested a day earlier i.e. 27‑12‑1976.
The appellant admitted the earlier charge against his father Khan Hussain and his acquittal. He, however, denied being present or to have fired at Rehmatulah, Dilbar and others. He denied that he had absconded but admitted that he was evading his arrest on account of being falsely charged in the case. He attributed the case against him to the enmity already existing between the parties. His father after having been arrested ascaped from the custody of the police and was not available at the trial. The others faced the trial.
The trial Court found that there were two phases of the occurrence, the first in which Rehmatullah was killed and the second soon thereafter, wherein, Dilbar was killed and others injured by the firing. As regards the first phase of occurrence, the testimony of Hadayatullah (P.W.12) and Muqeedullah (P.W.13) was considered sufficient to prove the presence and implication of the appellant. At one stage it appeared that they were believed with regard to the implication of the appellant in the second phase of the occurrence also because the trial Court observed as follows:‑
"It can be safely assumed on every possible hypothesis that in fact accused Iqbal and Khan Hussain who were armed with D.B. shot‑guns, after killing Rehmatullah deceased, had also killed Dilbar deceased and injured Buber, Khurshid, Abdul Hakim and P.W. Khan Sher in second stage of the occurrence."
However, the trial Court proceeded to extend to them the benefit of doubt by observing as follows:‑
"As far as Qamash, Shaukat, Kamal, Naqashband and Muhammad Said accused some of whom are related to accused Iqbal and Khan Hussain while the others amongst them are their comrades all, according to the general tendency in this part of the country, be said to have been roped in by attributing them fire shots in the second stage of the occurrence. The testimonies of Hidayatullah and Muqeedullah P.Ws, are indeed confidence inspiring and correct to the extent of the role played by accused Iqbal and Khan Hussain in the first stage of the occurrence while there is no positive and conclusive evidence regarding the complicity of all the accused concerning the second stage of the occurrence wherein Dilber was killed and Buber, Khurshid, Abdul Hakim and P.W. Khan Sher were injured."
There was a positive statement by the eye‑witnesses who have been believed that after Rehmatullah received fire‑arm injuries he fell on the ground and so did his revolver. It was picked up by Muhammad Said, the acquitted accused who fired at the temple i.e. at the residence of the absconding accused. This incongruous part of the prosecution case was taken note of by the trial Court and dealt with as follows:‑
"He argued that it was the deceased Rehmatullah who initiated the attack against the accused by firing at the temple (in possession of Khan Hussain accused) with his revolver which provided a justification for the accused to fire in self‑defence and on the basis of self‑defence the accused are entitled to its benefits, he said. This contention too is without force because in a case of self‑defence the party which asserts its benefits, it must specifically raise it by way of a cross‑case or in any other commendable manner. This plea of self‑defence has neither been specifically raised by way of a cross‑case by the accused nor in their statements recorded after the conclusion of the prosecution evidence. So far as the record of the case goes, there is nothing which may entitle the accused to the advantage of self‑defence."
The trial Court held the appellant alone guilty of the offence under section 302, P.P.C. read with section 34 with regard to the murder of Rehmatullah. The other charges were held not proved. He was convicted and sentenced to death and was also ordered to pay a fine of Rs.10,000 by way of compensation or in default to suffer six months' R.I.
On appeal and while seized of the question of confirmation of death sentence, the High Court examined the entire evidence afresh and held the offence proved. The High Court did not at all take note of that discarded part of the prosecution case wherein Muhammad Said, the acquitted accused was attributed the role of picking up the revolver and of firing at the temple wherein his co‑accused had taken shelter and the argument that was sought to be built on it. The abscondence was found to provide the necessary corroboration. The conviction was maintained and also the sentence of death which was confirmed.
The motive in the case does not provide any corroboration because after the acquittal of Khan Hussain, the father of the appellant, on the charge of firing at a son of the deceased Rehmatullah, there was no motive for the appellant or his associates to have killed Rehmatullah. There was no factor brought on record insinuating them to do so. The grievance on the other hand on such an acquittal of Khan Hussain could be of the complainant party and not of the appellant and his associates. It has also been brought on record that the temple or the Dharamsala in front of which the entire occurrence had taken place was being used at the relevant time as residence or as Baithak of Khan Hussain. Rehmatullah armed with a revolver alongwith his two companions had approached it. According to the prosecution case this approach of the complainant party was unplanned, or in any case not known beforehand to the appellant and his associates. There could, therefore, be no planning or pre‑concert on their part to attock the complainant party. In this background, two facts brought out in the prosecution case stand out. One is, that the revolver handled by Rehmatullah had fallen on the ground when he received the injuries. This would indicate that he was handling the revolver and was not just carrying it when he was fired at. The other is, that Muhammad Said one of the accused had picked up the revolver from the ground while Hidayatullah and Muqeedullah, a son and a cousin respectively of the deceased had not gone far from the spot and instead of firing at them he is stated to have fired at the door of the temple used as residence or Baithak by Khan Husain one of his own associates. No explanation for it has come forward and it could be plausibly urged that what was attributed to Muhammad Said was palpably incorrect and that it was a role attributable to Rehmatullah himself who was in fact handling the revolver and who alone was for that very reason picked out as the only target notwithstanding the companionship of others closely related to him. Before the trial Court an argument was sought to be built on it but as is clear, it was rejected on an erroneous view of law. The error being that the trial Court held that the benefit of the plea of self‑defence could not be allowed on the facts appearing in the prosecution case unless the accused took a specific plea with regard to it and that having not been done, the appellant was not deserving of it. This question of the responsibility of the accused to plead a particular defence and then to establish it, has been considered in a number of cases the classic one being Woolmington v. Director of Public Prosecutions (1935 A C 462) in which it was held that "while the prosecution must prove the guilt of the prisoner there is no such burden on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt. He is not bound to satisfy the Jury of his innocence". In ‑the case of Safdar Ali v. The Crown PLD 1953 F C 93 and Muhammad Aslam alias Aslam v. The Crown PLD 1953 F C 115 the same duty of the Court to review the entire evidence that has been produced by the prosecution and the defence was emphasized and if any reasonable possibility flowed with regard to the innocence of the accused it had to be given effect to notwithstanding the quality and the value of the defence led by the accused.
In this case as the allegation of the prosecution was that a large number of persons, fully identified and known, participated in the occurrence, it was for it to establish the identity and implication of each. The appellant could on the facts stated plead his absence or non‑participation in the occurrence and was not necessarily obliged to plead self‑defence. It has to be kept in view that with the earlier acquittal of Khan Husain the absconding accused, the complainant would be aggrieved and not the appellant and his associates, the preparedness of the appellant and his associates and a pre‑concert and an arrangement on their part to indulge in crime will itself be not there. Further, in the case of the prosecution itself the appellant or his associates could not have known about the exact route to be followed by the deceased and his relatives even on a cattle fair day for it has come on record that there were at least four alternative routes for them to adopt. Besides, the deceased Rehmatullah was armed. He was carrying a revolver. According to the prosecution case, it was fired at the temple which was being used as his abode by Khan Husain, the absconding accused. The further contention of the prosecution that firing was made by Muhammad Said, an associate of the appellant, appears to be incongruous and palpably untenable. In that situation where the abode of Khan Husain was being fired at, those inside or near about it would certainly re‑act and this accounts for the firing from the temple from a position of cover. It would not in that case be possible for these witnesses even if they were present near the spot to identify each one individually. Besides, as held by the trial Court keeping in view the tendency that the relatives and associates are indiscriminately roped in, the implication of others may have been on account of such a tendency. All these factors in the prosecution case leave a reasonable margin of doubt so far as the credibility of these interested witnesses is concerned. Where this is so, the abscondence will not provide the necessary corroboration particularly where an absconder admits that he was evading his arrest on account of false implication in the case. Adopting the accepted principles for safe administration of criminal justice, we accept this appeal giving the benefit of doubt to the appellant and acquit him of the charges. His conviction and sentence is set aside. He shall be released forthwith unless his detention is required in some other case.
‑I have read the judgment written by my learned brother Shafiur Rahman, J. accepting the captioned appeal, and with respect. I would differ for the reasons recorded below.
2. Occurrence, in this case, took place in day light in Bazar Nawan Killi, District Mardan at 10 a.m. at a distance of about 2‑1/2 miles from Police Station Kalu Khan. Report of Hidayatullah complainant was recorded by S.H.O. Muhammad Nisar Khan on the spot at about 11 a.m. In substance the report is that when Hidayatullah, alongwith his father Rehmatullah deceased and Muqeedullah P.W.13 were proceeding to the cattle market for making some purchases, and reached near the shop of one Bahadur, Khan Hussain absconder and Iqbal appellant, alongwith the acquitted accused, appeared. The two accused opened fire with their shot‑guns which hit the deceased Rehmatullah who was immediately removed to the shop of Bahadur. The accused continued firing from the roof of a temple, in possession of Khan Hussain absconder. With these fire‑shots Dilbar, another deceased in the case, was hit and died. Khan Sher, Khurshid, Babar son of Nawaz and a Malang, name not known, were also injured; Rahmatullah deceased was hit by the shots of Khan Hussain and Iqbal. Muhammad Saeed the acquitted accused took the licensed pistol from the deceased and fired few shots towards the temple.
3. Motive, according to the complainant, is that about 4/5 months prior to the present occurrence Khan Hussain absconder had fired at Kifayatullah, brother of the complainant but was acquitted by the Court. On this account the accused side was aggrieved.
4. The learned trial Court while delivering the judgment, made the following observation:‑
"From the facts, circumstances of the case and evidence of the prosecution, I have come to the conclusion that there are two stages in which the occurrence took place. In the first stage accused Iqbal and Khan Hussain (absconder) beyond any reasonable doubt in furtherance of their common intention, committed the murder of Rehmatullah deceased exclusively because their other co‑accused, although variously armed, are not stated to have fired a single shot. As for the second stage, the co‑accused of Iqbal and Khan Hussain, no doubt, are shown to have climbed up the roof of the temple with them opening an attack at the bazar resulting in the death of Dilbar deceased while injuries to Baber, Khurshid Abdul Hakeem and P.W. Khan Sher, but the facts regarding this second stage of the occurrence have been mixed up and left inconclusive. Therefore, for‑the safe dispensation of justice and on account of the general tendency in this part of the country of the people for implicating the nearest relatives and helpers of the accused it deems proper not to hold them liable in view of the principle laid down by the superior Courts."
The learned Judge has made a careful analysis of the prosecution evidence. He has given due consideration to everything that could be said in favour of the defence. In spite of giving the defence the benefit of everything that could be urged in favour of the defence and yet has come to the conclusion that the statements of the two eye‑witnesses in so far as they implicate some accused, are correct and worthy of credit, the mere fact that the Judge rejected the prosecution evidence and disbelieved the best part of the prosecution story, is not sufficient for the appellate Courts to disagree with the trial Judge's conclusion he having had the advantage of seeing the witnesses.
5. The motive furnished by the prosecution is also, one of the reasons for recording the order of acquittal by my learned brother. "We know from experience of criminal Courts that atrocious crimes are; committed due to very slight motives, not merely from impulse or revenge) but to gain a small pecuniary advantage and to drive off for a time pressing difficulties"‑‑this classical observation was made by Campbell, C.J. in his address to the jury in Reg. v. Palmer quoted in Wills' Cir. Ev. 6th Edn. 63‑4.
6. In another case it was observed that if a person is charges: with having committed an offence, the fact that he had no motive to commit it, is a circumstance in his favour, as it strengthens the presumption of his innocence. On the other hand, where there is other evidence of the guilt of an accused person, the existence of motive is a circumstance corroborative of the case against him Rammun v. E.7.L. 84: 94, I.C.901: 1926.L.88: 27 Cr.L.J. 709. In this context another observation Wills' Cir. Ev. 6th Ed.60 is "But motive is a fact which is only within the knowledge of the person doing the act and "which no human being but the party himself can divine.'
7. Reverting to the evidence I considered that the statements of Hidayatullah P.W.12 and Muqeedullah P.W.13 are consistent and these witnesses have not been shaken by the lengthy cross‑examination. According to Hidayatullah P.W.12, he was present in his shop when his father, Rehmatullah deceased and P.W. Muqeedullah came there. On his inquiry from Muqeedullah, he was informed that they were proceeding to the cattle fair for making sundry purchases. He accompanied them and when they were near the shop of Bahadur in the Bazar of Village Nawan Killi, the absconding accused Khan Hussain, Iqbal the present appellant, and the other acquitted accused came armed from the side of the temple. Khan Hussain and Iqbal were armed with double‑barrel shot‑guns while rest of the accused were armed with various types of fire‑arms. Khan Hussain and Iqbal, seeing them, fired shots and Khan Hussain was the first to fire, followed by Iqbal appellant. These shots hit the deceased. The deceased fell to the ground, and so the revolver which the deceased was carrying, was taken away by Muhammad Saeed In cross‑examination nothing to discredit the witnesses has been solicited. Rather, he has affirmed the stand taken by him regarding his presence at the scene of occurrence at the relevant time. He was confronted with some portions of his previous statements but none of the so‑called contradictions are of any consequence. So is the statement of Muqeedullah. Both have categorically and in unequivocal terms, assigned the role of subsequent firing to the other accused from the roof of the temple; the firing resulted in injuries to Khan Sher, Khurshid and Baber and some others and as a result thereof another person namely Dilbar died. Therefore, the second round of firing from the roof of the temple could also not be disregarded. Thus the witnesses have neither prevaricated nor made any improvement for which their testimony, could be discredited. It is generally unsafe to apply the doctrine of falsus in uno falsus in omnibus to evidence of witnesses where the evidence is substantially correct, simply because there are either deliberate falsehoods in it, it should not be totally, rejected. This has been the consensus of opinion of the superior Courts.
8. Another factor which has to be taken into consideration is the medical evidence corroborating the ocular testimony. Dr. Farkhanda Jadoon P.W. 11 who performed the post‑mortem examination on the dead body of Haji Rehmatullah found 9 entrance fire‑arm wounds on right half of abdomen and 4 entrance wounds on right buttock. The doctor recovered 9 pellets from the injuries sustained by the deceased.
On the post‑mortem examination of the other deceased Dilbar the same doctor found 4 fire‑arm entrance wounds caused by pellets
The same doctor found fire‑arm injuries on Baber, Khurshid, Abdul Hakim and Khan Sher.
The other piece of evidence which is very material to mention is the statement of P.W. Lal Badshah who was entrusted with the warrants of arrests issued against the accused Khan Hussain, Shaukat, Muhammad Said, Naqshband and Iqbal appellant Exhs. P.X. to P.X. 4. He searched for the accused but they were not traceable in their own village nor in the surrounding villages. The same witness was then entrusted with the proclamation order against the accused Exh. P.Y. to Exh. P.Y./3. His statement has not been questioned in cross‑examination. Therefore, it further corroborates the ocular testimony of the main two eye‑witnesses Hidayatullah and Muqeedullah.
9. The Investigating Officer, Muhammad Nisar P.W. 15 reached the spot and found the dead body lying in the shop of Badadur. He prepared the injury sheet in respect of the other injured persons. He also prepared the inquest report and injury sheet of the other deceased Dilbar and recovered from the spot 30 card boards (per Memo. Exh. P.C.) of .12 bore; 5 deformed pellets Exh. P. 2 and one pellet Exh. P. 3 from the threshold of the shop of Abdul Halim. This indicates that there was continuous firing resorted to; recovery of various articles particularly 30 card boards lends support to the prosecution case. The is Investigating Officer, further stated that Shaukat, Muhammad Saeed, Naqshband, Khan Hussain and Iqbal were absconding; and he applied to the Magistrate for issuance of warrants under section 204, Cr.P.C. and when the warrants were returned unserved, the same Investigating Officer initiated proceedings of proclamation under section 87, Cr.P.C. Exh. P.Y. to P.Y./3.
10. The appellant, and other accused, when examined, denied the allegations. Iqbal appellant, however, admitted that his father i.e. absconder Khan Hussain was charged for firing on Kifayatullah brother of the complainant but he was acquitted. Regarding his absence, he stated that he did not abscond but had evaded arrest due to false charge. Abscondence in the present case can be taken into consideration while deciding the question of guilt or innocence of the appellant.
11. The learned High Court Judges also observed in the impugned judgment as follows:‑
" -----their version of the incident otherwise is consistent and rings true. In the F.I.R. also it is recorded that Khan Hussain absconder and Iqbal accused/ appellant fired a shot each at the deceased with which he was hit and injured. Only the order of firing, that Khan Hussain the first shot and Iqbal accused/ appellant the second shot which they later deposed in Court, was not given in their earlier statements. This may be an improvement on their earlier statements but cannot be accepted as a discrepancy or contradiction. Their version stands corroborated by the medical evidence inasmuch as the doctor found two separate injuries by pellets on the body of the deceased and the witnesses have deposed to the fact that the accused/ appellant as well as his father Khan Hussain, absconder were armed with D.B. shot‑guns with which they fired a shot each at the deceased. The recovery of card‑board discs and pellets further corroborates the oral testimony."
Taking all these facts into consideration I am not prepared to disagree with the assessment of evidence of the P.Ws. made by the learned trial Court as well as the appellate Court in so far as it relates to the accused /appellant. Therefore, I would disallow this appeal.
According to the majority opinion this appeal is allowed, with the result that the conviction and sentence recorded by the High Court is set aside and the appellant is ordered to be released forthwith unless required in some other case.
M . Y . H . Appeal accepted.
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