1988 PLP 1057 (SCMR)

USMAN ALI SHAH, J.‑‑This petition for leave to appeal has arisen against the judgment dated 27‑10‑1987. passed by the Peshawar High Court, Peshawar, whereby Criminal Appeal No.146 of 1985, and Criminal Revision No.98 of 1985 against the conviction and sentence of Saeed Ullah awarded to him by the learned Sessions Judge for the murder of Tajamal Khan vide his Judgment, dated 5‑12‑1985 was accepted by the impugned order. Briefly, the prosecution case as stated in the F.I.R. is that on the day of occurrence (25‑6‑1984) Talawat Khan (P.W.6), his brother Tajamal Khan, his step‑uncle Shamsher Wali and Saeed Ullah alias Bacha (respondent No.1) were going together for taking bath at a tube‑well. Respondent No.1 was following the other three. Meanwhile, respondent No.1 fired a shot at Tajamal Khan which hit him, as a result of which he fell down and expired on the spot. The respondent No.1 ran away after the occurrence. The motive for the offence alleged is that few days prior to the occurrence, there had taken place an altercation between the deceased and respondent No.1 but thereafter a compromise reached between the parties. Talawat Khan (P.W.6) while going to Police Station, Lahore met Fatehmand Gul Khan, ASI in the way. He reported the matter to him who recorded the same which was subsequently incorporated in the F.I.R. The accused was arrested on the same day. It is alleged that a pistol of .22 bore was recovered at the instance of the accused by 10. from the 'Kota' of his house on the same day. The 10. also recovered one empty of .22 bore from the spot. The pistol and empty was sent to the arm expert who reported that the empty was fired from the pistol in question. On 28‑6‑1984 the accused was produced before the Magistrate who recorded his confessional statement. After having accomplished the usual formalities, the accused was challaned to the Court of Session to stand trial for the murder of the deceased. In consequence of the trial, the accused was found guilty of the offence and was sentenced to death by the learned Additional Sessions Judge vide his judgment, dated 5‑12‑1985. The accused filed appeal against his conviction and sentence in the High Court. A learned Division Bench which heard the appeal found the accused not guilty of the charge and accepting his appeal acquitted him vide judgment dated 27‑10‑1987. We have heard the learned counsel for the petitioner at some length. We do not see any merit in this petition which deserves dismissal outright. Only Talawat Khan was produced as witness before the trial Court and the other persons mentioned in the F.I.R. were not produced. The learned trial Judge disbelieved Talawat Khan (P.W.6) to have been present on the spot and had witnessed the occurrence. In the F.I.R., he alleged that the accused had fired only one shot at the deceased. But according to the medical evidence, the deceased had suffered two fire‑arm injuries in the head. In the trial Court Talawat Khan (P.W.6), however, stated that the accused had fired two shots at the deceased. Obviously, this was an improvement in his evidence in order to fit in with the medical evidence. P.W. Talawat Khan was, therefore, rightly disbelieved by the trial Judge and the High Court was also right to endorse his finding in this behalf. The trial Judge however, believed the circumstantial evidence. He mainly relied upon the evidence of pistol allegedly recovered at the instance of the accused from his house. According to the learned trial Judge, the empty recovered from the spot was fired from the pistol, as reported by the fire‑arm expert, therefore, the accused was guilty of the offence, the more so as the accused had confessed to the guilt before the Magistrate. In the High Court, the learned Judges of the Division Bench minutely sifted the circumstantial evidence and we do not see any reason to interfere with their impugned finding that the prosecution story in this behalf is not convincing. The occurrence had taken place at noon time but the report of occurrence was made at 2 p. m. The report should have been made earlier in time. There is no explanation for the delay in making the report. It is alleged that on the same day the pistol was recovered from the house of the accused at his instance. This shows that the accused had confessed to the guilt on the very day when he was arrested. But he was produced before the Magistrate after four days for recording his confessional statement. This aspect of the case does not inspire confidence. It is clear to us that the confessional statement was extracted from the accused under duress from which he retracted at the trial. The recovery of pistol from the house of the accused is very doubtful. P.W. Sardar Ali stated that it was night time and the pistol was recovered by the I.O. at the instance of the accused from his house in the light of a torch. However, according to the evidence on record, the house of the accused had electricity. Thus, it does not stand to reason that the I.O. should have recovered the pistol in the light of torch when the electric light was already there. The story of recovery of pistol from the house of the accused, therefore, appears to be a manipulation which is not fit to be relied upon. As a result, this petition is rejected and leave to appeal is refused. M.I./T‑23/S Petition dismissed.