SHAH WALI vs THE CROWN

1. AKRAM, J.-This is an appeal with our leave by the convict; Shah Wali from his conviction and sentence of death under sec--tion 302/34 and rigorous imprisonment for ten years under section 307/34 of the Penal Code passed by the Sessions Judge of Mianwali and confirmed by the High Court of West Pakistan at Lahore after dismissing Criminal Appeal No. 425 of 1955 preferred against the convictions and sentences aforesaid.

2. Briefly stated the case for the prosecution was that there existed a bitter enmity between the appellant and the deceased on account of the previous murder of Haq Nawaz (appellant's brother) by Abdullah (brother of Sher Babadur, deceased), for which Abdullah's sentence of transportation for life was reduced, on appeal to the High Court, to rigorous imprisonment for five years; that in order to avenge the death of Haq Nawaz (being dissatisfied with the sentence of five years' imprisonment of Abdullah as inadequate), the appellant and his brother Shah Alam shot at Sher Bahadur hitting him and another person Hayat, P. W. 29, while they were travelling in a railway compartment from Daud Khel to Lahore, just as the train started from Daud Khel station at about 7- 50 p.m. On the 10th of September 1954; that as a result of the firing Sher Bahadur died at about 12- 30 a.m. On the 12th September 1954 in Civil Hospital, Mianwali, while Hayat, P. W. 29, was seriously injured; that there were a number of passengers in the compartment, who saw the occurrence and to whom within a minute or two of the occurrence Sher Bahadur deceased, mentioned the names of the appellant and his brother Shah Alam as the assailants.

3. The appellant and Shah Alam, however, denied the prosecution allegation ; and the suggestion made at the trial in their behalf seems to have been that P. W. 30, Jahangir P. W. 32 Muhammad Nawaz and P. W. 33 Ayyub Khan, who were inimical to the appellant and his brother, had prompted Sher Bahadur, deceased, to mention the names of the appellant and Shah Alam as the culprits.

4. The learned Sessions Judge accepted the prosecution version and convicted both the appellant and his brother Shah Alam sentencing the appellant as mentioned above and Shah Alam to transportation for life under section 302/34 and to 10 years' rigorous imprisonment under section 307/34.

5. On appeal, the High Court of West Pakistan set aside the conviction and sentence of Shah Alam, but upheld and confirmed the conviction and sentence of Shah Wali (the present appellant).

6. Counsel for the appellant urged inter alia, that the prosecution witnesses, who deposed to the effect that Sher Bahadur, deceased, immediately upon receiving the bullet wound had declared the appellant and Shah Alam as his assailants were untruthful witnesses and no reliance should have been placed upon them; that their statement to the above effect was false was apparent from Exh. PM/1 (telephonic message), Exh. D. G. (Roznamcha) recorded respectively at 8-25 p.m.

7. And 8-15 p.m. And the First Information Report (Exh. P. F/1) recorded at 9-00 p m, (i e., soon after the occurrence which took place at about 7-50 p.m.), which did not contain mention of the name of any assailant; furthermore, that the injured Hayat, P. W. 29, had failed to support the prosecution version in this respect. Counsel also suggested that P. W. 30 Jahangir P. W. 32 and Muhammad Nawaz P. W. 33 Ayyub Khan, who were in the compartment and were hostile to the accused, had instigated Sher Bahadur, deceased, to mention the names of the appellant and his brother as the assailants, which Sher Bahadur did some hours afterwards while making his dying declaration (Exh.

8. P. J.) recorded by a Magistrate; that the said P. Ws. 30, 32 and 33 (Jahangir, Muhammad Nawaz and Ayyub Khan) being considered as not reliable by either of the Courts below and the High Court having further failed to consider the evidence of the prosecution witness Hayat (P. W. 29), which favoured the defence, the prosecution evidence was far too scanty to sustain the conviction of the appellant.

9. It is quite clear that the above objections relate primarily to a mere appreciation and evaluation of the evidence.

10. Counsel, however, has taken us through the entire evidence in the case. As to the non-mention of the names of the appellant and Shah Alam in the Exhs. Mentioned above, the High Court has remarked:- "We have, however, no doubt in our mind that this was done with the best of intentions and in the interest of the accused persons. We feel strongly that the policemen present there wanted to confirm the truth of the statement of the deceased before allowing the names of the appellants to appear either in the first information report or in the entry at the Punitive Police Post, which, if permitted to appear in these documents would have made it impossible for them to let off the man who might have been later found innocent as a result of their investigation."

11. Hayat P. W. 29, has, no doubt, changed his version by stating at the trial that he did not recognize the assailants and did not hear the challenge thrown out by them, but the Sessions Judge has, given cogent reasons for this change in his attitude, and so it is not unlikely that the matter was not seriously pressed before the High Court and, therefore, has not been discussed by it. It appears that this witness was cross-examined by the prosecution as a hostile witness and his attention was drawn to the contradictory statements made by him before the committing Magistrate. Nothing, however, can be legitimately urged against the evidence of Ghulam Sarwar, Supervisor, National Bank of Pakistan, Lahore (P. W. 28), who deposed to the effect that as the train started from Daud Khel one man entered the compartment and another was partly within it with one foot still on the foot-board; that the man entering the compartment held a pistol and the other had a gun; that they spoke something aloud and then a loud report of a shot fired was heard; that after the fire the man with the pistol dropped his pistol on the floor and then both ran away; that the train stopped after one or two minutes; that the injured persons fainted a bit on being hit but recovered before the train stopped; that Sher Bahadur stated that his old enemies Shah Wali and Shah Alam had fired. It cannot, therefore, be said that there is no evidence on the record to sustain the conviction of the appellant. The evidence of Ghulam Sarwar, P. W. 28, corroborated by the recovery of the pistol, the dying declaration of Sher Bahadur, deceased, and the strong motive of the appellant for committing the crime has been relied upon by the High Court. It is evident that the High Court having discarded the evidence of P. Ws. 30, 32 and 33, who claimed to be eye-witnesses to the occurrence, the number of such witnesses, in the peculiar circumstances of the case, naturally shrank to a very large extent. Nothing, however, depends on the large or the small number of witnesses, if they are found to be reliable, Ghulam Sarwar, P. W. 28, appears to be a straightforward, consistent and trustworthy witness and we can see no reason why he should be disbelieved. We are unable to disagree with the conclusion arrived at by the High Court which is the final Court of facts in such matters. We dismiss the appeal.