SULTAN Versus STATE

1. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑ These two appeals filed by Sultan appellant arise out of the same murder case. In one he was convicted under section 302, P.P.C. with the sentence of life imprisonment and fine of Rs.50,000 and in the other the conviction is under section 13 of the Arms Ordinance, 1965 with .the sentence of one year R.I. and fine of Rs.500. In the order for grant of leave to appeal the following point has been noted for examination:

2. "There is only one eye‑witness namely Kasho P.W.6. In his cross examination, he said that I was brought by the police to P.S.I was kept by the police in P.S. for 4/5 days. My statement was recorded thereafter and I was brought before a Magistrate where my statement was got recorded under section 164, Cr.P.C. After getting my statement recorded before a Magistrate under section 164, Cr.P.C. then I was allowed to proceed to my house. My statement was recorded by the I.O. under section 161, Cr.P.C. about 2 days after the occurrence in the P.S. It is correct that I was not offering a statement favourable to the police so I was kept in the P.S. When I gave my consent that I will depose according to the wishes of the I.O. so the complainant and the police brought me to the Court for getting my statement recorded under section 164, Cr.P.C."

3. We have gone through the deposition of Kasho P.W.6. It reads as follows:‑‑

4. "That on the day of occurrence at about 9‑30 a.m. I and Ibrahim deceased were grazing the buffaloes in Ghari Bela. Meanwhile Sultan accused present in Court came from Mian Dheri said and asked Ibrahim deceased as to why he was grazing the buffaloes in Ghari Bela. An altercation took place between Sultan and Ibrahim deceased and Sultan accused caught hold of the deceased from his collar of the shirt and fired at Ibrahim deceased which hit him in his stomach and then he fired a second shot which hit on his thigh. On receiving the fire shots Ibrahim deceased fell down on the ground and the accused ran away towards village Galalia, while running away the accused fired a third shot in the air. In my presence Ibrahim deceased succumbed to his injuries and died on the spot. After that I went to the village and informed about the occurrence to my brother Chato and other people of the village. I told them that Sultan accused had murdered Ibrahim deceased by the fireshots and his dead body is lying in the Ghari Bela. After informing the occurrence to my brother and other people in the village I went back to the spot in Ghari Bela. I was examined by the police under section 161, Cr.P.C. and subsequently my statement was recorded before the Ilaqa Magistrate under section 164, Cr.P.C."

5. The admission made by this witness in cross‑examination which helps the appellant has already been reproduced above. If the main assertion made by this witness of having witnessed the occurrence is put in juxtaposition to the said admission a reasonably good ground arise that the witness might have been pressurised by the police for binding him down to the police version only. But on deeper scrutiny another more reasonable hypothesis has emerged after the careful reading of the evidence on the question of the guilt or otherwise of the appellant. It is admitted by this witness that there were other people of the village who were informed about the occurrence. They included his brother Chato as well as other residents of the village. He also admitted that he had told every body that Sultan had committed murder. This statement finds sufficient support and corroboration from the testimony of Ahmed Shah P.W.7. He stated that although the Punjabis (the locale is in N.‑W.F.P.) do not own any property in the village, they however keep their cattle in the Bela of Khan Ghari Ibrahim deceased was one of the labourers employed by the Punjabis and he used to graze their cattle in the Bela. He also admitted that the cattle of the uncle of Kasho P.W. were also being looked after by Ibrahim deceased as a labourer. Ibrahim had no cattle of his own. With this background he admitted that at about the time of occurrence he was present in the village Chowk when some Punjabi was saying that Sultan accused had murdered Ibrahim in Ghari Bela. This witness then informed Sareen Shah in Adda Miskeenabad to go to Shaikh Choor so as to inform Gul Habib about the murder of his son. The witness himself proceeded to village Ghurghushti on his own errand. The statements made by Kasho and Ahmad Shah when read together furnish a complete res gestae. The evidence so recorded, is otherwise admissible under the Evidence Act. Even if it falls within the definition of hear‑ A say as "said" by the bystanders or even the accused and witnesses at or about the time and place of occurrence, it becomes evidence even if it comes through second source. In that situation it becomes valuable direct evidence. Thus it appears that Kasho had told other people as well much before his statement was recorded by the police under section 161 or was got recorded under section 164 of the Cr.P.C. that Ibrahim had been killed by Sultan. It is an admitted position that at that stage he was not under the influence of the police.

6. Notwithstanding the foregoing analysis during the discussion learned counsel for the appellant argued that had he (P.W.6) been a truthful witness there was no need to bind m down under section 164, Cr.P.C. Although it would not have been necessary to deal with such a comment there are many explanations. One, as in this case it could be that Kasho was a boy of 16/17 years and an outsider Punjabi in Pakhtoon area. He belongs to non‑owner class while the parties in the murder case were the locals and owners as well as 8 elders. The police could very well‑apprehend that a person like Kasho despite being a truthful witness could be brought under an adverse influence so as to either deny his having seen the occurrence or to spoil the case of the prosecution by making slanting admissions. This supposition is fortified by the fact that Kasho did then try to make admissions. He at least had been under heavy influence of the locals. In our view Kasho was a truthful witness and what he stated in the examination‑in‑chief is fully supported and corroborated by Ahmed Shah P.W.7.

7. In the light of the foregoing discussion there is no force in the main appeal. Regarding the other the learned counsel did not press it. The same, accordingly, stands dismissed. Thus both the appeals are dismissed.

8. M.BA./M 726/S Appeals dismissed.