P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal by special leave from the appellate judgment of a Division Bench of the High Court of West Pakistan at Peshawar, by one Noor Shah who had been sentenced to death by the Sessions Judge, Hazara, for the murder of Muzammil Shah. The deceased was in his shop outside village Pairan at sleeping time on 16th October 1958, when he heard a knock at the door. On the door being opened two persons came in while the third sat outside the shop. The two persons who were not known to the deceased said that they had come to watch the timber of a contractor and wanted a smoke. He offered them a chillm when the man outside the shop said that he too wanted to smoke. This man had muffled his face with a handker chief and had a blanket on. After the smoke he also came in and apprehending that the men were robbers Muzammil Shah attempted to run out of the shop. He was however held by all the three persons and the muted man repeatedly struck him with a knife wounding him badly. Muzammil Shah himself made the report at the police station and subsequently made another statement at the hospital. In both these statements he said that the man who had muffled his face and had wounded him was Noor Shah, a resident of his own village, and also related to him. These two statements were treated as doing declarations and the conviction of the appellant is solely based on them. The question is whether in the circumstances of this case these two statements raised a reasonable doubt as to the identity of the muted man. In the statement made to the police Muzammil Shah stated that he had asked this man whether he was Noor Shah and that he had replied in the affirmative. This clearly shows that Muzammil Shah had some doubts about the identity of the man and took him to be Noor Shah because he had replied to the deceased's inquiry in the affirmative. In his statement made at the hospital, however, the wounded man said that he had identified the third man Noor Shah by his voice. There is thus a substantial variation between the two statements but they both give us the impression that Muzammil Shah himself was doubtful of the identity of the man) and described him to be Noor Shah merely because on being questioned the man replied that he was Noor Shah. There is no clear motive for the murder and if it be a case of robbery there is a reasonable possibility of the third man being some one other than We allow this appeal, set aside the conviction and sentence of the appellant and acquit him. A. H Appeal allowed.