1968 PLP 1290 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 17th October 1967, in Criminal Appeal No. 26 of 1967).

S. 302‑Acquittal of accused by High Court on appeal Petition for Special Leave to Appeal to Supreme Court‑Questions : whether High Court had disregarded principles guiding appellate Court in dealing with appeal under S. 417, Cr. P. C. and whether features of doubt affecting evidence were formulated by High Court in manner consistent with right reasons‑Leave granted. Shamim Ahmad Mirza, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State. ORDER FAZLE‑AKBAR, C. J.‑This petition for special leave to appeal is directed against a judgment of the High Court of West Pakistan by which the conviction of the respondent Sadeequllah for the murder of one Syed Muhammad Shah was set aside and he was acquitted. The prosecution case briefly was that on 10th October 1965, at about 4‑30 p.m. when Syed Muhammad Shah was returning to his Hujra in the company of Sahibzada Lambardar, the accused Sadeequllah and his son Haroon who were sitting in two cots in front of the Hujra armed with 12 bore shot guns went towards him and fired at him with their respective guns in quick succes sion killing him on the spot. Sherin Said a brother‑in‑law of the deceased who witnessed the occurrence lodged a first information report at the Police Station, Shahbaz Garh, the same evening at 6‑00 p.m. After the incident both the accused who lived close to the house of the deceased were found absconding. After about eleven months i.e. on 31‑8‑66 Sadeequllah, surrendered before the Police and he was eventually committed to the Court of Session to stand his trial on the charge of murder. Haroon is still absconding. The Additional Sessions Judge, Mardan, relying on the evidence of the two eye‑witnesses viz. Sahibzada Lambardar and Sherin Said convicted Sadeequllah under section 302, P. P. C. and sentenced him to death. On appeal and reference, the High Court acquitted the convict. The learned Judges gave the following reasons for doubting the presence of the eye‑witnesses at the time of occurrence :‑ (i) According to the doctor who held post‑mortem examina tion, the injuries on the deceased were caused by at least 3 shots w1hereas according to the eye‑witnesses' only two shots were fired at the deceased ; (ii) The presence of undigested food in the stomach of the deceased supports the statement of the Doctor that the occur rence took place between 1 and 2 p.m. and not at 4‑30 p.m. as alleged by the eye‑witnesses. (iii) Presence of Sherin Said at the deceased's village at the time of occurrence for the purpose mentioned by him does not `appeal to reason' and `the possibility of his having been sent for after the occurrence cannot be altogether excluded' and (iv) Sahibzada's "assertion that he was in the company of the deceased even after the return from Mardan where they hard gone to offer fateha is rather suspicious for in the natural course of events he should have gone to his house in the same village". The learned counsel for the petitioner has contended that the reasons given by the learned Judges for the view which they have taken are untenable, that the value of the evidence of eye- witnesses remains unaffected by those reasons, and that inference of guilt is only reasonable inference that can be drawn upon a fair consideration of all the facts and circumstances of the case as established by the evidence. The above contentions do not appear to be devoid of force. We, therefore, grant leave to appeal to consider (i) whether the High Court in rejecting the evidence of the eye‑witnesses has disregarded the principles which should guide a Court of appeal in dealing with an appeal under the provisions of section 417 of the Code of Criminal Procedure and (ii) whether the features of doubt affecting the evidence were formulated by the High Court in a manner consistent with right reasons. Non‑bailable warrant will issue against respondent Sadeeq Ullalh returnable to the District Magistrate, Mardan. Leave granted.