1972 PLP 193 (SCMR)

SAJJAD AHMAD, J.‑The respondent, Rozi Khan, was charged for the double murder of Satana Khan, a young boy in his teens, and his uncle, Fateh Khan, which took place on the 5th of February 1968, at about 11/11‑30 hours in the vicinity of Wand Ghanoo Shah and Wand Ghundai of village Babuzai, Tehsil Mardan. His co‑accused, Gul Roz Khan, who was also said to have been concerned in this crime, absconded after the occurrence, and is still at large. The respondent, Rozi Khan, was convicted by the trial Judge for the murder of Satana Khan, and sentenced to death on that count. He was, however, acquitted of the second charge relating to the murder of Fateh Khan. The High Court, on appeal, has acquitted him of the charge of murder of Satana Khan, leading to this petition for special leave to appeal. The F. I. R. was lodged by Khan Farosh, father‑in‑law of Rozi Khan. Khan Farosh did not survive to give evidence at the trial, as he was killed soon after the occurrence. The respondent and the absconder were charged for this murder also. Rozi Khan was tried and acquitted but Gul Roz Khan, who is absconding; has still to face that charge. According to the report made by Khan Farosh, the motive for the murders was the greed of the respondent and his co‑accused to grab the estate of Fateh Khan, who was issueless. No motive was, however, disclosed for the murder of Satana Khan, except that he was a nephew of Fateh Khan. According to the prosecution case, one Qadar Muhammad and P. W. Fazal Dad had witnessed this crime. Qadar Muhammad was not produced at the trial, as he had allegedly turned hostile. Fazal Dad, who is a lad of 11 years, is related to the deceased, being the sister's son of Khan Farosh, father of Satana Khan, deceased. Although Fazal Dad was an eye‑witness in the case, and, in fact the sole dependable eye‑witness, it is curious that he was not examined during the commitment proceed ings, and was produced for the first time at the trial. His evidence has been carefully analysed by the learned Judges in the High Court, who have found that the evidence of Fazal Dad lacks conviction, as he has departed in many material particulars from his police statement, with which he was confronted. P. W. Khalil‑ur‑Rehman was produced as a corroborative witness, who alleged that he had reached the scene of occurrence after hearing the firing of the shots, and was told by Fazal Dad about what had happened. Fazal Dad had also mentioned the presence of some other witnesses, who were not produced.. Since the state ment of Fazal Dad was found to be unsatisfactory by the High Court, the corroborative evidence of Khalil‑ur‑Rehman, even if it were to be accepted, does not advance the prosecution case. The learned Judges in the High Court have also held that the F. I. R. was made after a considerable delay, which also casts a cloud of doubt on the prosecution case. No clear motive is established on the record for the murder of Satana Khan by the respondent, Rozi Khan. The prosecution case against him in its entire setting is not free from doubt, and he was rightly given the benefit of doubt by the High Court. We see no valid ground for interference. The petition is dismissed. Leave refused.