YAQOOB SHAH Versus THE STATE

MUHAMMAD Gul, J.‑Yaqub Shah, the petitioner herein, has been sentenced to death for the murder of Muhammad Sardar Khan, and also to 3 years' R. I. under section 13 of the West Pakistan Arms Ordinance, 1965. His appeal before the High Court has failed and his death sentence confirmed. He row seeks leave to appeal against his convictions and sentences as aforesaid.

F. I. R. of the incident was lodged at 11‑30 a.m. on 20‑9‑1973 by Foot Constable No. 837 Taweez Gul, P. W. 5, then posted with the C. I. A. Staff Peshawar Cantt., an eye‑witness to the incident. According to the version given by him, at the relevant time, he was on gasht duty in Ghalla hlandi where he bad also to make sundry purchases. He went to the shop of a shoe‑maker named Pordil Khan from whom he wanted to have a pair of chapals made to order. As he was settling the price, he saw the petitioner coming from the direction of Tipu Sultan Road with a country‑made pistol in his hand. The deceased was ahead of him at some distance. As the petitioner came near to the deceased, he fired five shots from a distance of two paces. The deceased was hit in the head and fell on the ground. The petitioner then made a bid to escape from the scene. Taweez Gut and Pordil Khan both gave him a chase and ultimately with the help of A. S. I. P. W. 7 and Ashiq Hussain were able to overpower and relieve him of they pistol. A. S. I. Hayat Ahmad Khan P. W. 8 who has his residential house close by and had witnessed the incident from the gallary of his house also ran to help in the capture of the culprit. Taweez Gul with the help of aadat Mehdi Khan, Ashiq Hussain and Hayat Ahmad Khan brought the petitioner to the P. S. Peshawar Cantonment West where he lodged the report at 11‑30 a m. and produced country‑made list .l Exh. P.

1. The report was recorded by Hussain Ali Khan, S. H. O. who arrested the petitioner and also took into custody pistol Exh. P. 1 and three live rounds Exh. P. 2 still in its charger. The pistol smelt of fresh fire. A remarkable feature of the F.1. R. is that the informant was not able to give the name of the deceased. Immediately thereafter the Investigating Officer proceeded to the spot where the dead body lay and recovered blood‑stained earth, five crime empties Exh. P. 3 and two led bullets Exh. P. 4.

The autopsy on the dead body showed a fire‑arm entry wound in the right temple region 1/2" x 1/2" in the skull with the corresponding exit wound 1" x 1" in the frontal region of the skull on the left silo. The death in the opinion of the Doctor due to injury to the brain as a result of the fire‑arm was instantaneous. In his cross‑examination, the Doctor also confirmed that the deceased was fired from the back right side.

In his statement under section 342, Cr. P. C. the petitioner stated that he was falsely implicated because the deceased who was a tenant of his father‑in‑law Fazal Rahim was turned out by him because he was a bad character. The petitioner added that he was arrested from his residence by certain Police Officers on a suspicion that he had had the deceased killed by some unidentified hired assassins.

The prosecution case rests on the evidence of Taweez Gul P. W.

5. A. S. 1. Hayat Ahmad Khan, P. W.

6. The latter was on sick leave on that day and reading newspaper while sitting in the gallary. He saw the deceased being hit by one of the shots fired by the petitioner and who after hitting the deceased tried to escape towards Tipu Sultan Road. He also ran to help in the capture of the petitioner and accompanied Taweez Gut, Saadat Mehdi Khan, Ashiq Hussain and the petitioner to the P. S.

The trial Court accepted the evidence of the eye-witnesses Taweez Gul and Hayat Ahmad Khan and the confirmatory evidence of Saadat Mehdi Khan and the medical evidence. Ashiq Hussain was given up as unnecessary and Pordil Khan as having been won over. The trial Court also rejected the defence version. A jarring role in the case however, was that the pistol Exh, P. 1 and the crime empties recovered at the spot were sent to the Forensic Laboratory where these were examined by Muhammad Sayyar Khan who however, opined that the empties were not fired from the crime pistol No. 2410 Exh. P.

1. He was examined as Court witness in the High Court. But his opinion was brushed aside.

Mian Mahmood Ali Qasuri, learned counsel for the petitioner argued that the learned Judges in the High Court had not given due weight to the jarring features in the case which made it wholly doubtful. It was stressed that according to the prosecution, the incident took place during busy hours in the main bazar yet no shopkeeper in the neighbourhood has been produced as an eye‑witness and that the direct evidence is confined to the statements of the three Police officials who in the normal course of events should not have been present at the spot at the relevant time. Pordil Khan who was the only unofficial and therefore independent witness was not examined. This according to learned counsel makes the entire case suspicious moreso because the deceased was a brother of Police Officer Muhammad Jan Khan S.1. and therefore the witnesses examined were under his influence. Finally it was submitted that the direct evidence implicating the petitioner as having fired at the deceased with the pistol Exh. P. 1 was belied completely by the evidence of the Ballistic Expert who during his cross‑examination in the High Court had stated that the crime empties recovered at the spot had not been fired from the pistol Exh. P. 1 produced by Taweez Gul at the time of making his report Exh. P. A. Learned counsel was critical of the manner by which the evidence of Muhammad Sayyar Khan was brushed aside by the learned Judges for reasons which according to him were wholly inadequate, and which if accepted would seriously impair the administration of criminal justice in the Province.

We have considered the submissions made by the learned counsel and find them without substance. The argument completely overlooks the fact that the report was made within less than half an hour of the incident and therefore it entirely eliminates the possibility of falsification or false implication. Further the petitioner was caught red‑handed at the spot and produced at the time of making the report, should also allay all doubts on the point, particularly when the deceased's identity remained undiscovered until the investigation. The mere fact that the deceased happened to be a brother of Jan Muhammad Khan who at the relevant time was posted at P. S. Takht Bhai can hardly be a reason to doubt the veracity of the Taweez Gul and Hayat Ahmad Khan the two eye‑witnesses in the case. The fact that Taweez Gul was on gasht duty is supported by the entry in the daily diary and that Hayat Ahmed Khan P. W. 6 had his residence close to the place of incident is not denied. So also the fact that the incident took place near the shop of Pordil Khan, Shoe Maker, is also not seriously contested.

About the main argument of learned counsel, that the petitioner's conviction rests entirely on the evidence of Police Officials and no "indepen dent" witness has been produced in the case, although the incident has taken place during busy hours in the. main bazar, all that we need say is that this brings to a focus the tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings. It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on‑lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These "independent" on‑lookers are not even prepared to' say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest or their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases. In this case, the conduct of Pordil Khan is in keeping with the general pattern of behaviour in the society. But that should scarcely be a reason to doubt the veracity of the three Police Officials who appeared as the main witnesses to the incident, or the capture of the petitioner as he was trying to flee from the spot. Rather their grit and the sense of duty, is praiseworthy.

As to whether the evidence of the Ballistic Expert can outweigh the direct evidence of the two eye‑witnesses, the learned Judges have given cogent reasons for not accepting the expert's evidence. According to the learned Judges, his examination of the case was not scientific enough to inspire confidence. It is well-established principle, that expert evidence, may it be medical or that of a Ballistic Expert is entirely in the nature of confirmatory c or explanatory of direct or other circumstantial evidence. But if there is direct evidence as in the instant case which is definite, forthright and at the same time creditworthy, confirmatory evidence is not of much significance, It cannot, at any rate. Out weigh, the direct evidence unless it for any reason deficient in quality. This case, in our opinion is not of that kind, However, that may be, the entire argument of learned counsel canvassed for a re‑evaluation of the evidence by this Court which cannot be undertaken, for no fault can be found in the approach of the learned Judges in the High Court or the trial Court.

The petition is accordingly dismissed.

S. A. H. Petition dismissed.