1969 P Cr (PLP)

ABDUS SATTAR, J.‑

The appellants along with two others, namely, Munif and Sultan were tried by the Additional Sessions Judge, Peshawar, on a charge under section 302/34, Pakistan Penal Code for the murder of Mst. Nurina on 2nd April 1966. The learned Judge acquitted Munif and Sultan but convicted the appellants and sentenced each of them to death. The appeal preferred to the High Court by the appellants failed and their sentences were confirmed. Leave to appeal was granted to re‑examine and re‑assess the evidence for the safe administration of justice. It is said that on the 2nd April 1966, Id‑uz‑Zuha day, the deceased Mst. Nurina, her son Rasul Khan and daughter, Mst. Wazira went to the graveyard early in the morning to offer prayers for the departed souls of their kith and kin. On their way back when they reached near the Khowar (Village pond), they saw four persons armed with Topaks namely, Hazratullah appellant, his son Munif, Faqir appellant and his brother Sultan advancing towards them from the village side. According to Mst. Wazira they were seen at a distance of 5 or 6 paces while according to Rasul Khan, the accused persons were at a distance .of 15 or 16 paces. Rasul Khan ran towards the canal and all the four accused persons fired at the deceased after encircling her. On receipt of gun‑shot injuries Mst. Nurina fell down and died on the spot. Mst. Wazira returned to the village and is alleged to have narrated the incident to Mst. Hajira, wife of Rasul Khan. Rasul Khan went and took shelter in Kandi Mama Khel. The people of the village put the dead body of the deceased on a cot and took it to the Police Station, Badeber at a distance of about two miles where Mst. Wazira lodged the First Information Report at 10‑00 a.m. The ocular evidence was furnished by Mst. Wazira (P. W. 6) and Rasul Khan (P. W. 7). Mst. Hajira (P. W. 8) was examined to corroborate Mst. Wazira. The learned Sessions Judge thought that there were certain features in the evidence which raised some doubt about the presence of Rasul Khan at the time of the occurrence. The learned Judges in the High Court, however, thought that the reasons given by the trial Court for doubting the presence of Rasul Khan were not sufficient. In that view of the matter they have placed reliance on both the alleged eye‑witnesses. The evidence of Rasul Khan is that when they were returning his deceased mother and sister were ahead of him. His mother and sister on seeing the accused getting into the Khowar, told him to get aside lest he might be harmed by them. He accordingly proceeded on the bank of the Khowar and was going at slow paces and looking at the accused persons. In cross‑examination he said that he had sighted the accused persons at a distance of 15 to 16 paces. The learned Additional Sessions Judge thought that as according to the site plan Rasul Khan was at a distance of 150 paces from the accused persons, his evidence that he was at a distance of 15 or 16 paces could not be accepted. The learned Judges in the High Court, however, have found that site plan was not prepared according to the statement of Rasul Khan and therefore the conflict between it and Rasul Khan's evidence should not have weighed with the learned Additional Sessions Judge. It will, however. be seen that the learned Additional Sessions Judge was of the view it would not be safe to rely upon the evidence of Rasul Khan not only because of the above conflict but also the fact that if he had really seen the accused persons from a distance of 15 or 16 paces it was wholly impossible for him to have escaped unhurt. The F. I. R. in this case was lodged by Mst. Wazira, the sister, though both she and Rasul Khan stated that the latter went to the Police Station. In the F. I. R. her statement was that on seeing the accused persons Rasul Khan ran away and took shelter in Kandi Mama Khel. The prosecution case is that the accused persons went to kill Rasul Khan and on finding that he had disappeared, murdered his mother. Rasul Khan's evidence that he was proceeding on the bank of the Khowar at slow paces and looking back and thus witnessed the occurrence is wholly unworthy of credit as in those circumstances the mother would not have been the victim. The accused persons would have chased him. In this view of the matter we feel that the learned Additional Sessions Judge rightly thought that the claim of Rasul Khan that he had witnessed the occurrence was doubtful. We are now left with the evidence of Mst. Wazira as corroborated by Mst. Hajira. Both of them are highly interested witnesses. It is worthy of note that Mst. Wazira began her evidence by asserting that they had no enmity with the accused persons but in cross‑examination admitted the existence of a blood‑feud. Her statement in the F. I. R. was that all the four accused persons fired on the deceased. In Court, however, she stated that the shots of Hazratullah and Faqir only hit the deceased but not those of the acquitted accused. The latter statement was made only to make it compatible with the medical evidence according to which the deceased was hit by two shots. She denied the defence suggestion that there was litigation between her father and her husband. This was however admitted by her brother Rasul Khan. Her statement that the shots of the appellants only hit the deceased and those of the acquitted accused were ineffec tive cannot be accepted in the facts and the circumstances of the case. It is true that the evidence of Mst. Wazira found favour in the Courts below but in our view the features in her evidence to which reference has been made earlier did not receive due consideration. Having examined the evidence with utmost care we felt that it would be unsafe to maintain the convictions of the appellants on a capital charge in this case only on the testimony of a highly interested witness uncorroborated by any independent evidence. It is in these circumstances that we have felt constrained to interfere with the findings of the Courts below. For the reasons stated above we are of the opinion that the guilt of the appellants has not been established beyond reasonable doubt. The appeal is allowed. The convictions and the sentences of the appellants are set aside and they are acquitted of the charge. They will be set at liberty at once if not required in any other connection. Appeal accepted.