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Criminal Appeal No. 14‑P of 1977, decided on 11th June, 1985.

(On appeal from the judgment and order, dated 18‑5‑1977 passed by Peshawar High Court in Criminal Appeal No. 167 of 1975).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal granted to examine contentions advanced namely: that prosecution version being that deceased was shot while standing in Tonga but seats and woodwork of Tonga smeared with blood yet it was not scrapped and sent for Chemical examination; that Tonga although seized yet it was not produced in evidence, which belied prosecution version; that account was discrepant as to how Police Officer came to spot and recorded statement of eye‑witness which gave an impression that there was deliberation in fixing identity of culprit; that although two persons were stated to be eye‑witnesses yet Police Officer recorded evidence of one while other was also present alongwith him and such person whose statement was not recorded had only seen accused at time of occurrence; failure to hold identification test was fatal and lastly that prosecution version being not consistent with location of injuries found on deceased, could not be given any credit.

‑‑‑S. 302‑‑Incident occurring in broad daylight in a street of village and witnessed by two independent witnesses who had no reasons to falsely implicate accused or to substitute him for real culprit‑‑Ocular version further corroborated by testimony of another prosecution witness who resided in neighbourhood of deceased‑‑Events following arrest of accused from his house and seizure of gun which smelt of freshly fired gun powder not only fixing his identity but also identity of crime weapon‑‑Unimpeachable evidence available to show that deceased had been shot while standing in Tonga, non‑production whereof was of no consequence‑‑Investigating Officer had collected blood which had fallen from Tonga on ground at spot which was sent for chemical examination‑ Investigating Officer considered it sufficient and about his failure to scrap blood from seats and woodwork of Tonga no further question was nut to get his explanation and in its absence no adverse inference could be drawn‑‑Identity of accused was hardly in doubt in context of ocular testimony, holding of identification parade was of no value‑‑Name of eye‑witness whose statement was not recorded by Investigating Officer alongwith other, transpiring in first information report; delay in recording statement of that very eye‑witness by Investigating Officer, therefore, was not material‑‑Prosecution evidence as to firing by accused at deceased while latter was standing in a moving Tonga, going tin rebutted‑‑Both ocular and circumstantial evidence corroborated by accused's own admission as to his arrest from his house which was surrounded by villagers and so seizure of gun and crime empty which read in context of prosecution evidence proving prosecution case beyond a reasonable doubt‑‑Contentions raised in background of affirmative evidence, hardly of any substance‑‑Conviction and sentence awarded by Court below maintained.

Muhammad Ishaq Khan Kundi, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record (Absent) for Appellant.

Bashirullah Khan, Assistant Advocate‑General, N.‑W.F.P. and Noor Ahmad Khan, Advocate‑on‑Record (Absent) for the State.

Date of hearing: 11th June 1985.

‑This appeal, by leave, arises from the judgment of the Peshawar High Court, Peshawar, dated 18th of May, 1976 by which Criminal Appeal No. 167 of 1975 was dismissed with a modification in the sentence.

The appellant was tried for causing the murder of Spin Khan by gun‑shot injuries while he was travelling in a Tonga, driven by

Ghanam Zar, alongwith his brother Azmat Khan and Gul Marjan, another passenger, at Digarwela in a public street in village Garah Pathar. The deceased and his brother had gone to Tank Bazar and were returning to their village and on the way near the house of the appellant, they saw him standing in front of it armed with a gun. Azmat Khan thereupon jumped on the front seat and hid himself under the seat which was occupied by the deceased and Gul Marjan. Jehangir Khan shouted at Ghanam Zar to stop the Tonga but not heeding to it he drove the Tonga faster while the deceased stood up to dissuade Jehangir not to fire. Gul Marjan sensing danger jumped from the Tonga. The appellant who was running behind the Tonga fired at Spin Khan who fell down. The horse got frightened and moved faster, but Ghanam Zar, however, stopped it in front of the house of Azmat Khan. The deceased in the meantime had expired. The appellant decamped from there and took refuge in his house in the village which was surrounded by the villagers so as to not allow him to escape.

Sharifullah Khan, Sub‑Inspector, who was on Gasht in village Garah Pathar on being informed of the incident came to the spot and recorded the statement of Azmat Khan at 7‑35 p.m. Sharifullah Khan next proceeded to the house of the appellant who had chained the door from inside and on his calling out, the appellant opened the door, and was, accordingly, arrested. From his house a gun was seized which smelt of freshly fired gun‑powder. The appellant also produced three live‑cartridges and one crime‑empty from the Chhappar of his house which were taken into possession.

On the deceased several inlet pellet injuries were noticed on the lateral side of his body and so also exit wounds.

The motive for the attack was that the appellant entertained a suspicion that Azmat Khan, who had escaped being shot at, was on terms of illicit intimacy with his wife.

Of the three eye‑witnesses examined, Ghanam Zar and Gul Marjan were independent witnesses. Azmat Khan, of course, was the brother of the deceased. The trial Court after discarding the criticism against the ocular testimony held it to be unimpeachable. Further the trial Court held that their statements stood corroborated by the arrest of the appellant from his house which was surrounded by the villagers and the seizure of the gun which smelt of freshly fired gun‑powder. The trial Court, accordingly, recorded conviction on the charge of murder and sentenced the appellant to death.

On appeal and reference, the High Court upheld the conviction, but reduced the sentence from death to imprisonment for life. .

The submissions advanced in the case were:‑

(a) that as noticed, the seats and woodwork of the Tonga were smeared with blood, yet it was not scraped and sent for chemical examination, and further this Tonga although seized was not produced in evidence which belied the prosecution version as to the deceased having been shot while standing in the Tonga;

(b) that the account was discrepant as to how Sharifullah Khan, Sub‑Inspector came to the spot and recorded the statement of Azmat Khan at 7‑35 p.m. which gave an impression that there was deliberation in fixing the identity of the culprit;

(c) that it was again surprising that although both Gul Marjan and Ghanam Zar were at the Baithek of Haji Ghulam Hussain in the evening of the 20th November, 1974, yet Sharifullah Khan only recorded the statement of Ghanam Zar. In this connection it was also emphasized that as Gul Marjaei had only seen the appellant at the time of the occurrence, the failure to hold the identification test was fatal; and,

(d) that the prosecution version could not be given any credit as it was not consistent with the location of the injuries found on the deceased. The point attempted to be made out was that if he had faced Azmat Khan while holding on to the canopy of the Tonga he should have sustained injuries on his face and chest and not on the lateral side.

In the leave granting order these submissions were also highlighted for examination.

These submissions, in the background of the affirmative evidence in the case, are hardly of any substance; and to say that it was an un-witnessed crime in view of the infirmities urged appears to be far fetched.' The incident occurred in broad‑day light in a street of the village and witnessed by at least two independent witnesses namely, Ghanam Zar and Gul Marjan, who had no reason to falsely implicate Jehangir or to substitute him for the real culprit. The presence of Gul. Marjan in the Tonga as a passenger can hardly be disputed as that is the usual mode for transporting people in the mofussil from the Bazars to the villages or from one village to another. Ocular version is further corroborated by the testimony of Mir Alam Khan (P.W. 12) who lives in the same village in the neighbourhood of the deceased. He is both related to the appellant and the deceased, and according to him when he heard the gun‑shot he came out of the house and saw a Tonga being driven fast and the deceased lying in the front Hodi, which he followed till it halted in the open space in front of the house of the deceased and there at his body was taken out and placed on a cot. He also saw the house of the appellant being surrounded by the villagers so as not to allow him to escape. He was not, at all, cross‑examined except for a question as to what prompted him to come out from his house to which he replied that it was the gun‑shot. Again in the events which followed his arrest from his house and the seizure of the gun which smelt of freshly fired gun‑powder not only fixed his identity but also the identity of the crime‑weapon. All these circumstances stands un-rebutted on the record.

In the background as it was, nothing could turn on the non -production of the Tonga in Court, as there was unimpeachable evidence to show that the deceased had been shot at while standing in the Tonga. Sharifullah Khan had collected the blood which had fallen from the Tonga on the ground at the spot where he was shot at which was sent for chemical examination. This apparently the Sub‑Inspector considered to be sufficient, and if at all he did not scrap the blood from the seats and wood‑work of the Tonga, no further question was put to elicit his explanation. In its absence no adverse inference could be drawn. Accordingly, from the non‑collection a further inferential conclusion cannot he drawn that the deceased was not shot at while in the Tonga. The trial Court had rejected this submission on the grounds; firstly, that Gul Marjan had seen the blood on the Tonga at the time of its seizure which fact was not disputed; and, secondly, it could not be scraped as it had gone dry, relying on the evidence of Muhammad Akbar Khan (P.W. 2). The High Court while rejecting the contention that the deceased was shot at in the lane relied on the fact that there was no basis for such an assumption. In effect, it accepted the prosecution version as to the deceased having been shot at while travelling in the Tonga.

Again as the identity of the appellant was hardly in doubt in the context of the ocular testimony and that of Mir Alam Khan, there was no reason for the complainant to deliberate as to the identity of the appellant or to substitute him for the real culprit. As such the holding of identification parade was hardly of any value.

The name of Gul Marjan had transpired in the F.I.R. and if, at all, there had been a delay in recording his statement it was immaterial, and ought it be said that if he had not witnessed the occurrence it would have been far‑fetched to mention his name in the F.I.R. in the hope that he would support the prosecution case.

As to the location of the injuries, it should not be forgotten' that the shot was fired at a moving object and the possibility that the deceased may have changed his position seeing the shot being fired at' him cannot be ruled out. The defence has not suggested that if he was not, at all, in the Tonga how else he could have received the gun‑shot injuries at his lateral side. A mere suggestion of doubt as to the deceased not having been shot at in the Tonga on this premise is neither here nor there so long the prosecution evidence stands un-rebutted on this aspect of the case.

This is not all. Both the ocular and the circumstantial evidence is corroborated by the appellant's own admission as to his arrest from his house which had been surrounded by the villagers and so also the seizure of the gun and the crime‑empty which read in the context of the prosecution evidence proved the prosecution case beyond a reasonable doubt.

Accordingly, we see no substance in this appeal, and dismiss it.

M. Y. H. Appeal dismissed.

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