1969 P Cr (PLP)

Nemo for Respondents Nos. 1 to

5. Shamim Mirza, Advocate instructed by Ijaz Ali, Attorney for the State. Date of hearing : 10th October 1968. ABDUS SATTAR, J.‑This petition for leave to appeal is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Peshawar Bench, dismissing an appeal preferred by the State against the order of acquittal passed by the Sessions Judge, Derajat, acquitting the respondents of the charges under sections 302/149, 307/149 and 148, P. P. C. The prosecution case was that on 24‑2‑1965, informant Muhammad Ali, Shah Behram and Mehr Ullah helped Sher Dil Khan and Nauroze, the two blacksmiths of their village in repairing their "chappar". The five respondents and Sard Ali (absconder) protested saying that the "chappar" belonged to them. On the same day at degar time Muhammad Ali was cleaning reeds in his chowk when Shaista Khan armed with a '12 bore S.B. gun and Sher Jan armed with a '12 bore gun of Kohati‑type came there from their Chowk. P. W. Muhammad Hussain was also busy cleaning reeds. From a distance of 15 to 20 paces from Muhammad Ali, Shaista Khan fired his gun injuring the former in his left arm. Sher Jan also fired but the shot did not hit Muhammad Ali. These culprits then ran back to their Chowk. In the meantime yard Ali, Taj Ali Khan, Mosam Khan and Badshah Khan armed with Tokas came there. Mehr Ullah deceased was then offering his prayers in the nearby mosque whereas Haji Shah Behram was sitting outside the wall of the mosque. Sard Ali and Mosam Khan fired one shot each. Shah Behram was injured by the shot of Sard Ali but that of Mosam missed him. Taj Ali Khan and Badshah Khan fired at Mehr Ullah and he was hit by the shot fired by Taj Ali and the shot of Badshah Khan missed him. The occurrence was witnessed by Ali Muhammad who was present nearby. Muhammad Ali went to Police Station Lakki at a distance of five to six miles at 9‑05 p. m. and lodged the First Information Report. The police during investigation seized two guns along with some cartridges both live and empty from the houses of the culprits. 8 empties‑4 of '303 bore were found at the scene of the offence. The Ballistic Expert opined that one of the empties found at the scene of the offence was fired from the ' 12 bore gun secured from the house of Sher Jan. The defence of the accused persons was one of denial of their participation in the occurrence. They alleged that the eye witnesses are related to the deceased and are in inimical terms with them. The trial Judge acquitted the accused persons as according to him the witnesses were interested and there was no independent corroborative evidence. He also found that the prosecution story suffered from some improbabilities and was therefore not worthy of credit. The learned Judges in the High Court have discarded the evidence of discovery as according to them the evidence of P. W. 16 Sher Ghulam Khan, S. H. O. is not consistent with the recovery Memos. On page 12 of the Paper Book there are certain remarks about the recovery of the two guns which go to indicate that simply because one of the guns which was secured from the house of Sher Jan bore a number, it was concluded that it was of foreign make and not a Kohati‑type of S. B. gun as was the case of the prosecution in the First Information Report. The learned counsel for the petitioner Abdul Hamid son of Shah Behram deceased, has drawn our attention to the recovery Memos. (Exhs. PK and PL). The learned Judges in the High Court thought that these recoveries were made on the 24th February 1965 but the evidence of P. W. 16 was that they were made on the 25th February 1965. We find that the recovery Memos. bear the date of 2 5‑2‑65 and not 24‑2‑65 as observed by the learned Judges. Similarly it is pointed out that it is difficult to understand how from the fact that the gun said to have been recovered from Sher Jan bore a number it was found to be of foreign make. One of the eye‑witnesses examined in this case is P. W. 2 Muhammad Ali. He was himself injured in this occurrence. There is no suggestion that this witness had any previous enmity against the respondents. In these circumstances it has been argued that the learned Judges were wrong in holding that he and Muhammad Hussain and Ali Muhammad, the other two eye‑witnesses because of their relationship with the deceased persons were interested witnesses. These features in the case necessitate our re‑examination of the evidence in order to see whether the acquittal of the respondents was warranted in the facts and circumstances of this case. Leave to appeal is accordingly granted. Bailable warrants will issue against the respondents for their production before the A. D. M., Bannu. Leave granted.