1972 PLP 190 (SCMR)

WAHEBDUDDIN AHMAD, J.‑Respondents Aftab Gul and Zahir Gul were tried for the murder of Abdul Khaliq under section 302/34, P. P. C. by the Additional Sessions Judge, Peshawar. The learned Additional Sessions Judge convicted both the persons and sentenced Aftab Gul to death and Zahir Gul to transportation for life. The respondents challenged their convic tion in Criminal Appeal No. 33 of 1971 and a Division Bench of the Peshawar High Court, by judgment dated the 16th September 1971, accepted the, appeal of the respondents and set aside their conviction. The petitioner who is the son of the deceased seeks permission to file an appeal against the said judgment. The prosecution case is that Aftab Gul and Zahir Gul sons of Jan Muhammad, the present respondents, along with Khush rang, Aurang and Sher Afzal were charged for the murder of Abdul Khaliq, Yaqub, Abdul Malik sons of Faqir and Rustam son of Umara, residents of village Tehkal Payan, on the 17th April 1960, in their village. They were tried under the F, C. R. They were sentenced to 32 years' R. I. each. They filed a writ petition in the High Court challenging the validity of their con victions and sentences and during the pendency of the writ petition they were released on bail. Their writ petition was dismissed on the 23rd December 1969. On the 20th February 1970, warrants for their arrest were issued from the Court of District. Magistrate but before these warrants could be executed the present occurrence took place on the 24th April 1970. Early in the morning on the 24th April 1970, Juma Khan P. W. 7, a cousin of Yaqub, Abdul Malik etc., deceased, mentioned above, learnt that Aftab Gul and Zahir Gul sons of Jan Muhammad respondents had come to their village and were cutting wheat crop in their field in a Wand Nullah. Juma Khan informed Abdul Khaliq son of Abdul Munaf deceased in this case and made him sit near the field where the two accused were cutting wheat, for keeping a secret watch on them. He himself went to Police Station, Tehkal and informed Mahmood Khan S. I. at 10 a.m. of the presence of the accused in their field. Mahmood Khan and Juma Khan came to Police Post, Peshawar University and from there took Alam Khan Head‑Constable P: W. 9, Fazal Khaliq F. C., Badshah Gul F.C., Izzat Khan F. C. and Zahir Shah F. C. along with them. The party proceeded from there to the Peshawar‑Jamrud main road. They boarded a truck and reached Wasrak Road. On reaching a place known as Kababian on the Warsak Road, the party divided itself into two: one headed by Mahmood Khan S. I., P. W. 12 and the other by Alam Khan, H. C., P. W.

9. From there they started towards the place where the two respondents were present. When the two parties came close to the two respondents, the deceased Abdul Khaliq also came out from the place where he was hiding. The two respondents who were armed with shot guns on seeing the police and the deceased, rushed at the deceased. Aftab Gul and Zahir Gul fired a shot each at the deceased but they missed him. Aftab Gal then fired another shot which again missed him. He fired another shot with which Abdul Khaliq was hit on his face and fell down dead. The Police personnel by this time had come near the two respondents and arrested them along with their fire arms. Juma Khan P. W. 7 then lodged the report, Exh. PA/1, with Mahmood Khan S. I., P. W.

12. The prosecution case is : supported by the doctor P. W. 1, Faqir Muhammad P. W. 2, Tehmash P. W. 3, Gul Roz P. W. 4, Gharibullah A. S. I. P. W. 5, Ismail P. W. 6, Juma Khan P. W. 7, Inzar Gul P. W. 8, Alam Khan P. W. 9, Zahir Shah P. W. 10, Muhammad Sher Inspector P. W. 11 and Mahmood Khan S. I: P. W.

12. The learned Judges of the High Court have reviewed the entire evidence and have come to the conclusion that there are some inherent weaknesses in the case which the Assistant Advocate‑General was unable to explain. Before us also Mr. Fakhre‑Alam, learned Advocate‑General has conceded that the State does not support the case of the petitioner. One of the inherent weaknesses is that the occurrence took place in a broad‑day light. The respondents were surrounded by six Police officials and Juma Khan. These seven persons allegedly saw the two respondents firing four shots in all and all the four empties were recovered from the spot. The two shotguns of the respondents were also taken into possession there and then. It is strange that none of the four empties bad been fired from the two shotguns, according to the report of the Fire‑arm Expert. In our opinion; this inherent weakness in the prosecution goes to the root of the case and the learned Judges of the High Court were perfectly justified in giving benefit of doubt to the two respondents. There are some other features in the case also which show that the High Court was perfectly justified in accept ing the appeal of the respondents. We are satisfied that the judgment of .the High Court is not perverse or unreasonable and it calls for no interference. The petition is dismissed. Leave refused,