1984 PLP 226 (SCMR)

BURHANUDDIN KHAN, J.‑Leave is sought to appeal against judgment of acquittal passed by the Peshawar High Court on 26‑5‑1981 accepting Criminal,, Appeal No. 286 of 1980 and rejecting the Murder Reference.

2. Zafrullah Khan accused/respondent alongwith his father Amanullah Khan stood their trial under section 302/34, P. P. C. for committing the murder of Haji Zar Gul by firing at him in the evening of 23‑i0‑1978 within the limits of village Kotka Shahzad. Amanullah Khan was acquitted while Zafrullah Khan accused/respondent was convicted under section 302, P. P. C. and was sentenced to death by the learned Sessions Judge, Bannu at Lakki vide order, dated 3.0‑4‑1980. The convict filed an appeal in the Peshawar High Court. Murder Reference was also placed before the learned Judges for confirmation of the death sentence. Mashal Khan brother of deceased Zar Gul also preferred a revision petition for enhancement of sentence by awarding adequate compensation under section 544‑A, Cr. P. C. All the three matters were heard by a Division Bench of the Peshawar High Court resulting in the acquittal of the accused/respondent, rejection of Murder Reference and dismissal of the revision petition.

3. Briefly stated the facts are that on 23‑10‑1978 after their evening meals Mashal Khan P. W. 3 and his brother Zar Gul deceased left their house for the Hujra of Haji Mir Qalam. When they reached near the chhappar opposite to the said Hujra Zafrullah Khan is alleged to have emerged, along with his father, armed with shot guns and Zafrullah Khan asked the deceased Zar Gul as to why be had insulted him a day before yesterday and simultaneously fired at him. Zar Gul was hit and fell to the ground. Soon after Asmat Ullah P. W. 4 and Akbar Zaman P. W. 5 came out from the nearby Hujra and in the torch light they saw the accused/ respondent running away. It is also in the evidence that a little before the occurrence Shireen P. W. 6 had seen the two accused armed with guns outside the village, and heard the gun‑shot shortly afterwards. On reaching the spot he found Mashal Khan, Asmat Ullah and Akbar Zaman present near the deceased and on his inquiry, the mentioned witnesses charged the accused for it he murder of Zar Gul.

4. The motive for the offence stated at the trial is that the accused/respondent wanted to develop illicit relations with Shabir Ahmad, P. W. 7 a boy of. 13 and had twice molested the boy who reported the matter to his father Zar Gul deceased who admonished the accused/respondent resulting in a quarrel and the accused was beaten by the complainant‑party a couple of days prior to the occurrence.

5. The learned Assistant Advocate‑General appearing for the State con tended that the solitary statement of an eye‑witness who is found to be truth ful would not need any corroboration particularly when there is no previous enmity existing between the parties that the prosecution witnesses one and all have supported the complainant case and there was no reason for the learned High Court Judges to discard their testimony and that the occurrence was immediately reported to the police.

6. We have examined the contentions raised by the learned counsel for the petitioner and find that the occurrence took place at 7 p.m. on 23‑10‑1978 while the report was lodged in the police station at 22‑45 p.m. The distance between the scene of crime and the police station is only 4/5 miles and the report, therefore, appears to have been lodged after inordinate delay as normally the distance of 4/5 miles could be covered in an hour or two. The learned High Court Judges were therefore right in holding that the occurrence took place in the dark of the night and there was no light around the scene of occurrence. The identification of the accused/respondent was not possible. In this connection we refer to the statement of one of the witnesses relied upon by the prosecution namely Asmat Ullah P. W.

4. According to him, he was present, alongwith Akbar. Zaman P. W. 5 in the baithak of Haji Mir Qalam Khan when they heard a report of gun‑shot and on coming out of the baithak they lit a torch and saw Zafrullah Khan and Amanullah Khan leaving the spot towards the east. Therefore, it becomes evident that the occurrence took place in the dark hour of night. The solitary eye‑witness Mashal Khan, brother of the deceased, was examined at the trial. He stated that after their evening meals, he alongwith his deceased brother, left for the Hujra of Haji Mir Qalam when they met the two accused armed with topaks Zafrullah fired and hit the deceased on account of the beating the deceased had given to the accused previously and that soon thereafter he proceeded to the police station to lodge the report Exh. P. A. He has not come out with any explanation for the delay of about 2/3 hours in lodging the report. Furthermore we find that the learned High Court Judges have rightly observed in paragraph 9 of the impugned judgment: "Furthermore, it is alleged by Mashal Khan that the appellant and his father came out of the chappar and the appellant fired at the deceased. Had the appellant pre‑planned the murder there was no occasion for him to have come out of the chappar in order to expose his identity. Nothing prevented him from achieving his object from inside the chappar and disappearing into the darkness of the night from the opening of the chappar towards the north . . . .." In the light of above discussions we are not inclined to grant leave. Accord ingly, the petition is dismissed. S. Q. Petition dismissed.