1983 PLP 130 (SCMR)

MIAN BURHANUDDIN KHAN,‑Kajal Khan (aged 30 years) appel lant, alongwith Maluk Khan (aged 59 years) acquitted accused, stood their trial in the Court of Session for committing the murder of Ishaq Khan (aged 19 years) their ca‑villager, by stabbing him with dagger in furtherance of their common intention. The trial Judge found both tile accused guilty of the offence under section 302, P. P. C. read with section 34, P. P. C., convicted and sentenced them to death and life imprisonment respectively and a fine of Rs. 2,000 each or in default, further six months' R.

1. Oil: of the amount of fine, if recovered, Rs. 2,OJU was ordered to be paid to the heirs of Ishaq Khan, deceased under section .544‑A, Cr. P. C. vide judgment dated the 14th February, 1979.

2. The two convicts filed appeal against their conviction and sentences and reference was also placed before the learned Judges of the Peshawar High Court for confirmation of their death sentence, who vide their judgment dated 27‑10‑1979, upheld the conviction of Kajal Khan and sentence of fine but converted his sentence of death into imprisonment for life, and acquitted Maluk Khan.

3. Leave was granted to Kajal Khan by this Court vide order dated 29‑4‑1980 to consider whether the evidence of two ocular witnesses was totally unsafe base for founding guilt of the accused on the murder charge: and that Said Akbar the father and Tariq Khan the brother of the deceased were admittedly present near the scene of crime yet they were not produced as eye‑witnesses and they never cared to lodge the F.

1. R. regarding the occurrence and left this responsibility to the mother. of the deceased, namely Mst Misri Jan, P. W. 7.

4. According to the prosecution case the deceased Ishaq Khan had come to sell milk at the Railway Station Kohat. While returning to his village, the two accused Kajal Khan and Maluk Khan who were sitting on the road side, got up to attack Isbaq Khan. Maluk Khan held the deceased while Kajal Khan appellant dealt him dagger blow on the left side of his ribs Ishaq Khan got injured, fell unconscious and was removed to the police station by Mst. Misri Jan, P. W. 7 where she lodged the, F. I. R. Exh. P. A.

5. Ishaq Khan (deceased) who was then alive, was sent to the hospital but he died later on without regaining consciousness. According to Mst. Misri Jan there was long standing enmity and blood‑feud between the parties.

6. At the trial Dr. Zafar Latif P. W. 3 who had performed the post‑mortem examination on 21‑5‑1978 stated that he had found a stab wound on the left side of the chest of Ishaq Khan deceased, in the 4th and 5th inter-costal space, on medial oxillary line. In the opinion of the Doctor the death of Ishaq Khan was due to injuries to vital organs, heart and left lung.

7. Mst. Misri Jan, P. W. 7 who had lodged the report in the police station on the same day i.e. 20‑5‑1978 at 6 p.m. furnished ocular account of the occurrence at the trial by stating that at deegar time she was returning from her thrashing floor to her house ; when she reached a lane leading to her village Merozai, she saw Maluk and Kajal, accused sitting on a culvert of canal. Meanwhile Ishaq Khan, deceased came on a bicycle with an empty can of milk, along with Zahir Khan. When Ishaq Khan reached near the culvert the two accused got up, Maluk Khan held him after dragging him from the bicycle, pulled him down to the ground and Kajal Khan dealt him a dagger blow. While Ishaq Khan (deceased) lay injured the accused decamped from the scene. She further stated that a Suzuki van came there and with the help of Safir Khan, P. W. 8 and others, she took lshaq Khan (deceased) to the police station where she lodged the F.

1. R. Exh. P. A. When examined in Court, she stated that she had taken tea for Said Akbar P. W. her husband and Tariq Khan, her younger son, who were busy in :heir work in the threshing floor and she had been helping them in their work earlier. In cross‑examination she was asked whether she had mentioned the tact that she has taken tea to the thrashing floor for her husband, it was found by the trial Court that this fact was not mentioned in the F. I, R.

8. Safir Khan, P. W. b the other eye‑witness who claimed that he was present near the scene of crime and saw the accused Kajal Khan dealing dagger blow to the deceased, stated that he supported the deceased when he was in an insured condition when in the meantime mother of the deceased Mst. Misri Jan. P. W. 7 arrived. Thereafter, the injured. Ishaq, Khan was taken to the police station.. (9) We find that the case against the appellant Kajal Khan is based in the evidence of Mst. Misri Jan, P. W. 7 and Safir Khan. Both the eye witnesses appear to be chance witnesses; and keeping in view the back ground of enmity between the parties, without independent corroboration it would be highly unsafe to base conviction on their testimony. It is admitted fact that at the time of occurrence Said Akbar, father and Tariq Khan, younger brother of the deceased were working at their thrashing floor at a short distance. Said Akbar was examined as P. W. 5 at the trial as a marginal witness to the recovery of blood‑stained earth taken by the Investigating Officer from the spot, and a bicycle P. 4 milk can P‑5 which the deceased was allegedly carrying, but he mentioned nothing about the occurrence nor about his presence at the thrashing floor. Thus, evidence Mst. Misri Jan, P: W. 7 and Safir Khan, P. W. 8 stand totally belied b this fact alone. Therefore, it will be against the rule of prudence to accept the version of Mst. Misri Jan. She alone took the deceased to the police station leaving her husband and younger son out of the picture, who, in the normal course of human conduct, should have been informed of the occurrence and should have accompanied the deceased to the police station and lodged a report. Being present at the thrashing floor, no reason is available as to why they should have left Mst. Misri Jan alone to proceed to the police station for lodging the report.

10. For the reasons stated above we accept the appeal of Kajal Khan, set aside his conviction and sentence, and direct that he be set at liberty if h y is not required in any other case Appeal accepted.