P L D 1994 Peshawar 93 (PLP)

Muhammad Khan for the State. Date of hearing: 20th December, 1993. One Riaz Khan, resident of village Amin Mughal Khel, was murdered on 7-7-1988 and in the F.I.R. made by his brother Gul Bahadur Khan his three co-villagers namely the respondent Muhammad Ali, his son Liaquat Ali and nephew Aslam Khan were nominated as the murderers. While Liaquat Ali and Aslam Khan made themselves scarce Muhammad Ali was nabbed but after a protracted trial was acquitted by the learned Sessions Judge, Bannu vide his judgment dated 11-2-1992. Taking exception, one of the eye-witnesses Asmatullah Khan, a cousin of the deceased, has filed the revision petition in hated.

2. The F.I.R. discloses that on the fateful day the complainant Gul Bahadur Khan, Balqiaz Khan, Asmatullah and the deceased had set out for their village from Naurang in a Datsun Pick-up. On reaching the path leading to Kotka Abbas Khan at about 1-30 p.m. they alighted from the Pick-up in order to proceed to their village. In the meantime the accused Muhammad Ali, armed with a Klashnikov, Liaquat Ali, armed with a D.B. shot-gun and Aslam Khan, armed with a .303 bore rifle, emerged from the gate of their house. On seeing them the deceased ran towards the fields of Bahadur Sher but all the three accused fired at him one after the other effectively as a result of which he lost his life. The occurrence was motivated by a previous blood feud.

3. Of the three eye-witnesses mentioned in the F.I.R. only Asmatullah was examined at the trial as the maker of the F.I.R. being a fugitive from law in another murder case was not available and Balqiaz Khan had not cared to turn up. The remaining prosecution -evidence consists of the statements of twelve witnesses including Dr. Muhammad Jamil (P.W.4), who had held autopsy on the dead body of the deceased and found as many as twelve fire-arm inlet wounds, and Muhammad Idris Khan S.H.O. (P.W.12) who had conducted the investigation.

4. The accusation levelled against him by the prosecution was refuted by the respondent in his statement under section 342, Cr.P.C. His plea was one of complete denial of the occurrence and false implication. He also took the plea of alibi that at the crucial time he was offering Peshin prayers in mosque in Bannu City where he runs a Chemist and Druggist Shop and in order to support it not only examined himself on oath but also examined two witnesses Gul Muhammad (D.W.1) and Mir Qadar Khan (D.W.2).

5. The plea of alibi taken by the respondent was touched by the learned trial Court in passing and was not taken to its logical conclusion and the respondent was essentially acquitted on the ground that the solitary eye-witness Asmatullah was a chance interested witness and had suppressed the real facts.

6. After hearing the learned counsel for the parties at length and scanning the record with their help I am satisfied that the respondent was acquitted on correct premises and the aforementioned ground of acquittal cannot be called perverse or artificial. Asmatullah P.W. does not appear to be a natural and probable witness and the eye-witness account given by him indeed does not inspire confidence. In any event the view taken by the learned trial Court cannot be termed as impossible. In this context it will be advantageous to refer to the observations made in Feroze Khan v. Fateh Khan 1991 SCMR 2220 which are worded thus:-- "The Courts often in such like difficult situations, have applied test of "impossibility" by asking question; whether it was-impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place:" In the result this revision petition is dismissed. N.H.Q./1519/P Revision petition dismissed.