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Petition for Special Leave to Appeal No. 37‑P of 1969, decided on 27th March 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 2nd October 1969, in Criminal Appeal No. 192 of 1968).

------- S. 302/34‑Murder‑Benefit of doubt‑Court giving benefit of doubt and acquitting accused holding that both parties fired at each other and it was impossible to find out as to which party started firing first‑Contention that such an approach was wrong and benefit of doubt was given illegally and contrary to judicial principles, held, not without substance Special Leave to Appeal granted by Supreme Court to re‑examine question.

Ghulam Sarwar Chaudhry, Advocate Supreme Court instructed by Amirzada Khan, Advocate‑on‑Record on behalf of Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondents Nos. 1 to 5.

S. Fakhre Alam, Additional Advocate‑General West Pakistan instructed by Ijaz Ali, Advocate‑on‑Record for the State.

Date of hearing: 27th March 1970.

‑Gadai Khan, Ashraf Khan and Ajab Khan (respondents Nos. 1 to 3 herein) along with Fariq Khan and Muhammad Irfan (respondents Nos. 4 and 5 herein) were tried for offences under sections 302, 307 and 325, read with section 149 of the Pakistan Penal Code. Of them, the res pondents Nos. 1 to 3 were convicted under sections 302/34, 307/34 and 325/34 of the Pakistan Penal Code and each of them was sentenced to death under section 302/34 on two counts for committing the murders of Dadan and Mahmud, rigorous imprisonment for 10 years under section 307/34 on three counts and 3 years' rigorous imprisonment under section 325/34. Fariq Khan and Muhammad Irfan, the remaining two co‑accused were, however, acquitted. The respondents Nos. 1 to 3 preferred an appeal against their convictions and sentences. Abdur Rehman, the present petitioner who is a brother of the two deceased made a revisional application against the trial Court's order acquitting Fariq Khan and Muhammad Irfan. The appeal of the convicts and the said revisional application were heard along with the death reference and were disposed of by a single judgment of a Division Bench of the High Court of West Pakistan, Peshawar Bench. The learned Judges found on evidence that there was a fight between the two parties as a result of which men of both the parties sustained injuries and there were two deaths on the side of the complainant party. In spite of this finding, they gave the convicted persons (i.e., the present respondents Nos. 1 to 3) the benefit of doubt and set aside their convictions and sentences. They also dismissed the revisional application.

The present petition is directed against the judgment of the High Court acquitting the respondents Nos. 1 to 3 and refus ing to interfere with the trial Court's order acquitting the respon dents Nos. 4 and 5.

There was a dispute between the parties with regard to the possession of a land. On the 11th March, 1968, at 8‑30 a.m., the accused persons, armed with weapons, went to the disputed land for ploughing it. They took bullocks with them for that purpose. Their attempt to plough 'the land was resisted by the men of the complainant party. There ensued a fight between the parties with the result that Dadan and Mahmud of the complainant party were killed by fire‑arm shots, and fire‑arm injuries were caused to P. Ws. Muhammad Irfan, Abdur Rehman and Khaiber Zaman. Kala Khan, another prosecution witness sustained injuries inflicted by blunt weapons. On the side of the accused party, Gadai Khan (respondent No. 1) and Ashraf Khan (respondent No. 2) sus tained fire‑arm injuries. The injuries sustained by the men of both the parties including the fire‑arm injuries on the deceased Dadan and Mahmud were borne out by the medical evidence. Having accepted the correctness of these facts on the basis of the evidence adduced in the case, the learned Judges abruptly came to the conclusion:

"Both the parties started firing, wherein Gadai Khan Ashraf appellants, Gul Zaman son of Zabz Ali, Abdur Rehman, son of Bosa from the accused side and Dadan and Mahmud deceased, besides P. Ws. Muhammad Irfan, Abduf Rehman and Khaiber Zaman received fire‑arm injuries. In such circumstances, it will be impossible to find out as to which of the parties started firing first. It being doubtful as to which of the parties attacked first, the benefit of doubt will go to the accused.

Learned counsel for the petitioner submits that the above approach of the High Court was wrong; that, in any even the accused persons had not the right to kill two persons of the complainant party and that the learned Judges acted illegally and contrary to judicial principles in giving to the respondents Nos. 1 to 3 the benefit of doubt. These contentions do not appear to be without substance, and it is necessary to re‑examine the evidence. Leave is, accordingly, granted as against the respondents Nos. 1 to 3. Non‑bailable warrants be issued against these three respondents, returnable to the District Magistrate, Hazara at Abbottabad.

As regards the respondents Nos. 4 and 5, the trial Court doubted their participation in the crime‑particularly when neither of them had any marks of injury on their person. The trial Court's order acquitting the respondents Nos. 4 and 5 cannot be said to be based on no valid reason. Con sequently, the High Court was not wrong in refusing to interfere with the acquittal of the respondents Nos. 4 and 5. The petition for special leave as respects these two respondents is, therefore, dismissed.

Order accordingly.

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