1992 PLP 1401 (SCMR)

Ijaz Hussain Batalvi, Senior Advocate Supreme Court, MA. Zaffar, Advocate Supreme Court and Mehr Khan Malik, ex‑Advocate‑on‑Record for Petitioners (in all Petitions except Cr. P. 86/90). Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in CI.P. 89/90 and for father of deceased in other petitions). Advocate‑General, N: W.F.P. for the State. Date of hearing: 18th March, 1991. SHAFIUR RAHMAN, J.‑‑‑By 5 petitions, of which four have been filed from jail; the convicts seek leave to appeal against the judgment of the Peshawar High Court dated 25th of June, 1990 whereby the conviction of the seven convicts under section 302/120‑B/109/148/149, P.P.C. was upheld i.e., the death sentence of two, Abdul Hafeez and Muhammad Ayub confirmed and life imprisonment to five others, with a fine of Rs.5,000 each was maintained. Only one of the accused, namely, Khalid was given the benefit of doubt and acquitted in appeal. There is also a petition by the father of the deceased against the acquittal of Khalid and enhancement of the sentence of life imprisonment imposed upon others.

2. The prosecution case was that on the night of 22nd and 23rd January, 1982, Ali Haider (son of Abdul Jabbar P.W. 22 and petitioner in Cr.P. No.89/90) was murdered by firing shots at him. His maternal uncle Abdur Rahim was seriously injured by fire‑arm shots and both of them were found lying on Sooraj Gali Hattar Road (Tehsil Haripur). The F.I.R. was recorded by Syed Moazam Shah (P.W. 20) at 8‑30 a.m. on the statement of Abdur Rahim injured, now one of the accused/convicts. In this report Rahim charged Muhammad Akbar and Mir Dad alongwith two other unidentified persons for the offence giving out as motive a land dispute and the money that was being carried by the deceased.

3. During the investigation it was found that Abdur Rahim and Musa, the two employees of the Railways who were sharing a quarter had deprived Ali Asghar of huge amount, about Rs.2,67,000 out of which only a small portion had been returned, and in order to avoid their financial responsibility they evolved the plan/conspiracy whereby Ali Haider was done to death. Abdul Jabbar (P.W. 22) the father of the deceased provided the list of persons from whom the ,money had been taken for sending them abroad and also other writings, and these coupled with the judicial confessions made by Muhammad Ayub, Musa and Khalid led to the conviction of the accused persons as indicated.

4. After hearing the learned counsel for the petitioners and going through the record with his assistance were and that the case had certain features which necessitate the re‑examination of the entire evidence. The features particularly to be noted are that it is a case of circumstantial evidence. There is no direct evidence of the crime available. It has to be examined whether the link provided by such circumstantial evidence is complete and worthy of credit to prove the case against each of the convicts beyond reasonable doubt. The confessional statements also are not quite consistent inter se or with the prosecution case as disclosed at the trial. In any case no explanation is found in the prosecution case for Abdur Rahim/accused/ complainant being injured in the occurrence from such a close distance as to leave charring marks on his person and thereafter his abandonment on the road‑side alongwith the dead body. Such a situation does not prima facie involve him as an accused in the commission of the crime.

5. In the circumstances, leave to appeal is granted in five petitions filed by the convicts. Abdur Rahim, the maker of the F.I.R. and subsequently a convict alongwith the other accused/petitioners has, it appears, not filed any petition for leave to appeal either from jail or otherwise. An enquiry should be made with regard to him so that if relief is at all afforded to the other appellants/convicts, he may have also an occasion to avail it of.

6. As regards the petition against acquittal and for enhancement of sentence filed by Abdul Jabbar the father of the deceased (Cr.P.LA. 89/1990), we find that the two sentenced to death have benefited from a reprieve and if death sentence had been awarded to the others as is sought by the petitioner Abdul Jabbar, the others would have benefited from the same amnesty order. In the circumstances, we do not consider that the prayer for enhancement of sentence of others can be justifiably entertained. Hence, leave to appeal is refused in Cr.P.No. 89 of 1990 to this extent. As regards the acquittal of Khalid, as the entire matter is coming up for re‑examination, let this petition be heard alongwith the appeals of the convicts after notice to Khalid. N.H.Q./A‑941/S Order accordingly.