MUHAMMAD IQBAL ALIAS JAVED IQBAL Versus THE STATE

1. SALAHUDDIN AHMED, J.‑ This appeal, by special leave of this Court, is from an order of the Peshawar High Court manitaining the conviction of the appellant under section 302 of the Pakistan Penal Code and his sentence of transportation for life passed on him thereunder for the murder of Sabz Ali with a gunshot.

2. The incident took place near Mirza Killi Bus Stop on the 5th of August 1970, at 10 a.m. in a Government Transport Service Bus No. P R A‑4519 which was in motion, and while the appellant and the deceased were both travelling in it. The prosecution case is that the appellant, who was armed with a topak, boarded the bus at Gunj Bus Stop. Suddenly the report of a gunshot was heard and simultaneously it was heard that Sabz Ali (the deceased) had been shot by Iqbal (the appellant). The bus driver slowed down the vehicle, and the conductor, P. W. Muhammad Ishaq, and a passenger. P. W. Sher Abbas, found Sabz Ali lying injured and dying. All the passengers got off the bus. The appellant was seen going at a distance of 100 paces from the bus.

3. It may be stated here that according to the evidence of P. W. Mst. Roshana, mother of the deceased, she too was travelling in the same bus along with her niece Mst. Mahmoona, and the deceased. The witness stated that appellant Iqbal and co‑accused Raziur Rahman, the latter armed with a topak boarded the bus at Gunj Bus Stop. Near Pandu she saw the co‑accused handing over the topak to Iqbal. The deceased changed his seat and sat down by the side of the door of the bus. When the bus reached near Mirza Killi Bus Stop, Iqbal fired a shot and hit the deceased. The passengers stood up and the driver slowed down the bus and the two accused jumped down from the vehicle and ran away. The site plan appears to have been prepared, inter alia, with the assistance of P. W. Mst. Roshana. It is unfortunate that her presence at the occurrence was not found acceptable by either Courts on the ground that none of the witnesses said he had seen her inside the bug or soon after the occurrence. For some curious reason her neice Mst. Mahmoona was given up by the learned Public Prosecutor as unnecessary, and neither the Court nor the defence examined her although she was present outside the Court.

4. The motive for the crime was enmity between the parties. It is said that 3/4 years before the incident one Shah Nazar of village Urmar Miana had been killed for which Zeldar, a uterine brother of Sabz Ali deceased was tried and sentenced to death and executed. Nafizur Rahman, father of the appellant had appeared as a prosecution witness in the said case. 7/8 months before the present occurrence Nafizur Rahman had been killed, and appellant party suspected Haveldar, brother of the deceased, as the person responsible for the murder of the appellant's father. It may be stated here that in course of his statement before the learned Sessions Judge under section 342 of the Code of Criminal Procedure the appellant admitted the fact that six years ago Shah Nazar bad been murdered and Zeldar brother of deceased was charged for the murder and he was sentenced to death and executed, and that in that case Nafizur Rahman, father of the appellant, had appeared as a prosecution witness.

5. After the occurrence P. W. Sher Abbas proceeded to his village Urmar Miana. and on the way he came across P. W. Sarfaraz and his uncle Ghulam Nabi, and informed them that Sabz Ali had been shot dead by Iqbal inside a bus near the bus stop of Mirza Killi. P. W. Sarfaraz is a consanguine brother of the deceased, and he accompanied by Ghulam Nabi went to Mirza Killi, a furlong away, and found the dead body of Sabz Ali lying in a pool of blood inside the bus.

6. Prosecution has relied mainly upon the evidence that contemporaneously with the firing of the shot the passengers of the bus said that Iqbal had shot at/killed the deceased, and the corroboration furnished by certain circumstantial evidence, by the existence of a strong motive on the part of the appellant to kill the deceased, and the medical evidence.

7. P. W. Sher Abbas, a passenger in the bus and a disinterested person, saw the appellant and the deceased travelling in the bus. The witness saw the appellant having boarded the bus armed with a topak. He heard the shot of a gun, and immediately turned round, and saw the deceased injured, and the appellant jumped down the moving bus, and ran away. He heard the passengers shouting that Iqbal killed the deceased. The witness attended to the deceased. It appears from the site plan that he was occupying a seat only 4 feet off the seat occupied by the deceased.

8. P. W. Sher Abbas is corroborated by P. W. Wahid Gul, driver of the bus, whose evidence before the committing Magistrate was brought on record under section 33 of the Evidence Act, as he was lying ill in the Surgical Ward of the Lady Reading Hospital, Peshawar, and there was no likelihood of his discharge in the near future (Vide P. W. Muhammad Ishaq). P. W. Wahid Gul stated that he heard a cry that a man was bit in the bus. The witness and the passengers came down the bus, and the witness heard the people shout that the deceased had been killed by Iqbal.

9. P. W. Muhammad Ishaq, conductor of the bus and a resident of Urmar Miana, said that the bus was driven by P. W. Wabid Gul and that the deceased was travelling in it. He further said that Iqbal boarded the bus with a topak. He heard the report of a shot. He found the deceased lying injured and dying. The bus stopped and the passengers got down, and went away. He saw Iqbal at a distance of about 100 paces from the bus, and the people crying that Sabz Ali (the deceased) was shot by Iqbal (accused‑appellant). He admitted his relationship with Iqbal. In cross‑examination he said 5/6 of the passengers of the bus apart from Iqbal carried firearms. It may be mentioned here that he was the only witness to say so. He definitely lied when he said that before the occurrence he did not know either the accused or Sabz Ali (deceased), and that there were no female passengers travelling in the bus. The trial Court therefore, rightly observed that he purposely suppressed the truth, and the High Court agreed with the trial Court.

10. The circumstantial evidence that supported the evidence of the afore ‑said three witnesses are that soon after the shot the appellant was seen jumping down the moving bus and running away, and that he was armed with a topak. Furthermore, the appellant had' absconded for more than 5 months. P. W. 5 Shamsuddin, Head‑Constable, stated that he had been entrusted with the warrants of arrest against both the accused persons, and although he searched for both of them in their village and the surrounding villages neither of them was traceable and he, therefore returned the warrants unserved. P. W. 12, Sub‑Inspector Muzzammal Shah who was then posted as S. H. O. of Police Station Saddar, .corroborated P. W. Shamasuddin and said that the warrant bad been returned unserved by the latter with a report that the accused were not traceable. P. W. Muzzammal Shah later obtained proclamation under section 87 of the Code of Criminal Procedure against both the accused. P. W. 13 Bakhtiar Khan who was then posted as Additional S. H. O. to Police Station, Saddar, stated that he had searched for the accused but neither of them was available. In course of his statement under section 342 of the Code the appellant stated as follows:‑

11. "I did not abscond. On the other hand, I applied for bail before arrest but having failed to obtain such bail I went into hiding out of fear being of tender age. Subsequently I voluntarily sur rendered myself to the S. S. P., Peshawar."

12. "This explanation was neither put to any prosecution witness nor was substantiated by any evidence. The explanation is evidently an afterthought, and is not supported by anything on record.

13. The medical evidence shows that Sabz Ali deceased aged 20 years had ‑suffered

14. "(1) A firearm (bullet) entry wound on the right side of base of neck, size x charring was present.

(2) A firearm exit wound of injury No. 1 on the front of neck 1 x 1 situated on the right side of frontal surface of neck."

15. The doctor found the stomach healthy and was full of semi‑churned food material. The post‑mortem was held on the very day of occurrene at 2‑10 p.m. and the doctor said that the time between the injuries and death was almost immediate and the time between death and post‑mortem was 4‑6 hours. Thus ,the time fitted with the time of occurrence.

16. It may already have been noticed that there was a strong motive on the ;part of the appellant to kill the deceased.

17. It is of interest to mention here that having regard to the facts and circumstances of the case there is no doubt about the fact that the incident which took place at daytime in a bus filled with passengers could not have gone unnoticed and the assailant unrecognized. The deceased and the appellant as well as the prosecution witnesses all came from Urmar 'Miana and the recognition of the appellant was, therefore, very likely and natural. This view finds support from the fact that upon the firing of the ,fatal shot the passengers immediately cried out that Iqbal had shot at/killed the deceased. Nevertheless none of the passengers came forward to say that he actually saw the appellant fire at the deceased. This is unfortunate and can only be understood in the context of the conditions', obtaining in that part of the country where the occurrence took place, '' namely, the reluctance of witnesses or lack of courage on their part to depose against the assailant for fear of reprisal. This discloses a lamentable lack of civic sense and responsibility on the part of a citizen to tell the truth and to act for the benefit of the society and in aid of the authorities charged with the duty of maintaining law and order.

18. The only witness, namely, P. W. Mst. Roshana, who claimed to be an eye‑witness, has unfortunately not been relied on by either courts. Perhaps with a little more efforts on the part of the prosecution agency some other eye‑witnesses might have been produced.

19. The question, therefore, that calls for consideration is whether the evidence as disclosed in the case is adequate and safe to maintain the, conviction of the appellant. There is no doubt that at least the evidence of, P. W. Sher Abbas falls well within the provisions of section 6 of the Evidence

20. Act read with Illustration (a), which are as follows:‑

21. "Section 6.‑Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

22. Illustration (a).‑A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by‑standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact"

23. Having regard to the clear and unambiguous nature of the evidence, I do not accept the contention advanced by Sh. Muhammad Shafi, learned counsel for the appellant, that there was such an interval of time between the firing of the fatal shot and the shouting of the passengers/people that 1qbal had shot at/killed the deceased, that the evidence of the witnesses did not fall squarely within the provisions of section 6 of the Evidence Act. At any rate there was no such interval in the case of P. W. Sher Abbas. In the case of Ghulam Nabi Shah v. Crown (1969SCMR629) this Court observed as follows with regard to the principle of section 6 of the Evidence Act:

24. "The principle of this section seems to be that such declarations as are referred to in the illustration should be substantially contempor aneous with the act and the interval between the act and the declaration should not be such as to allow of fabrication or to reduce the declaration to the mere narrative of a past event."

25. I am also unable to accept the contention advanced by the learned counsel that inasmuch as it was not said who was the person who had said that Iqbal had shot at the deceased, the evidence of the witnesses on this point N, should not be accepted. My view receives support from the Commentary on the Principles And Digest of the Law of Evidence by Monir, Fourth Edition, pages 26 and 27. The learned author has observed as follows:‑

26. "Since the section makes such statements a 'relevant fact' they may be proved by the evidence of any person who hears them and it is not necessary that their maker should appear in Court to' prove them."

27. "In English law, statements which become admissible as a part of the transaction are not, in general, evidence of the truth of the matter stated. It is, however, submitted that, under the Act, such state ments may be treated as substantive evidence, i. e., as evidence of the truth of the matter stated, inasmuch as the section does not in any way limit their relevancy to any particular purpose."

28. Similarly in Phipson's Manual of the Law of Evidence, 8th Edition by Elliott at page 31 it has been observed as follows:‑

29. "Similarly, in R. v. Foster, A's words, or, his groans, might be original evidence of his wounded state, but his statement that B had run him down was only original evidence of A's opinion, which was irrelevant, it was hearsay evidence of the cause of the accident which was relevant, and as such was admitted. Normally such hearsay evidence is inadmissible, but where the circumstances are such that the statement is spontaneous, to the sense that some contemporaneous exciting event forced it out of the maker before he had time to reflect or .contrive anything to his own advantage, some at least of the objections to hearsay evidence disappear, and the likelihood of its being true is correspondingly increased."

30. However, admissibility in evidence is one thing, and the value to be attached to it for a particular purpose is quite another. There have been case where evidence under section 6 of the Evidence Act has been sought to be relied on for the purpose of corroboration. But I have not come across a single case where a person has been convicted of murder solely on such evidence; nor any such case has been cited before us. It is true that the evidence under section 6 and that under section 32 of the Evidence Act, both fall under the few exceptions to the rule agains hearsay evidence. But while the latter is referable to the statement of the victim, a living embodiment of the tragedy, either recorded formally by a magistrate, informally by an official or a private person or testified to by a reliable person, each one of whom says he heard the dying person name his assailant, the former lacks such qualities. There is some amount of sanctity attached to the statement of a dying person. Such evidence has, therefore, been often relied on solely for basing a conviction on. The evidence under section 6, however, lacks any such reassurance, and hence the absence of any case in which conviction has been based solely on such evidence. It can only be used as a link in the chain of evidence. Consistent with the principle of safe administration of justice, therefore, I would look for some reassurance in the case of such evidence before relying on them for the purpose of maintaining the conviction for murder, particularly when there is no evidence to show that the persons who said Iqbal bad shot at/killed the deceased either knew or likely to have known Iqbal and his name. In the present case such reassurance has been furnished in several ways. Firstly, there is the existence of a strong motive on the part of the appellant to commit the murder of Sabaz Ali deceased. Secondly, there is the evidence that he was travelling in the same bus armed with a topak. Thirdly, soon after the occurrence he jumped down the moving bus and ran away. Fourthly, that he remained absconding for more than five months after the occurrence without any valid explanation for such action. Last though not least 6e was alone mentioned in the first information report as the solitary assailant of the deceased. Relying on all these evidence, not in isolation but as a whole. I have no doubt that the conviction of the appellant has been legally and properly maintained. The appellant has already been given a lesser sentence and this was the only other sentence that could have been passed on him under the law.

31. I would, accordingly, dismiss this appeal, and maintain the conviction ,and sentence.

32. MUHAMMAD YAQUB ALI, J.‑I agree.

33. MUHAMMAD GUL, J.‑I agree.

34. S. A. H. Appeal dismissed.