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(On appeal from the judgment aid order 7f the Peshawar High Court,

Peshawar, dated 14th July 1976 passed is Criminal Appeal N0. 137 of 1975).

Constitution of Pakistan (1973)--

-- Art. 185(3)-Penal Code (XLV of 1860), S. 302-Murder-case Acquittal -Leave to appeal-Contention that High court ignored significant fact of accused's being a near relation of petitioner and hardly any occasion arose for him to falsely imps rate accused in substitution of real culprit; that testimony of unconnected eye witnesses disregarded for no good reasons ; that ocular testimony stood strongly corroborated by recovery of battery call from spot. same having been earlier purchased by accused that ocular testimony did not conflict with medical evidence as found by lower Court; and that in case report had been recorded at spot after preliminary investigation as found by lower Court, oral dying declaration would have found mention in First Information Report-Entire evidence, held, needed review in interests of justice-Leave to appeal granted.---[Leave to appeal-Appeal against acquittal].

Jalaluddin Khan, Advocate with Qasim Imam, Advocate-on-Record for Petitioner.

Zafar Mahmood, Advocate with Noor Ahmed Noori, Advocate-on-Record for Respondent No. 1.

Safdar Hussain. Advocate for the State.

Date of hearing s 16th May 1977.

MUHAMMAD AFZAL CHEEMA, J.

-Fazal Ilahi petitioner herein brother of Shehzada deceased who wag murdered on 9-3-1975 at 6-37 p.m. in village Shah Maqsood six miles away from Police Station, Haripur, has felt aggrieved by the judgment of acquittal by a D. B. of the Peshawar High Court dated 14-7-1976 by which accepting the appeal filed by Zamurnd Khan respondent, the learned Judges set aside his conviction under section 302, P. P. C. and the sentence of life imprisonment awarded to him by the Sessions Judge, Hazara.

On the fateful evening Fazal Ilahi petitioner accompanied by his brother Shehzada deceased visited the shop of Haji Abdur Rahim father of fafeez (P. W. 5) in the village Bazar. Fazal Ilahi purchased a packet of cigarettes from Hafeez P. W. and his deceased brother purchased two battery cells. While returning to their house they passed in front of the shop of Boston father of Zamurad respondent when suddenly the latter fired at the deceased with a shot-gun from tine roof of the shop hitting him on the left arm. On receipt of injury, the deceased ran back and being hit by the second shot fired by the respondent entered the nearby shop of Master Muhammad Dm (not produced) and collapsed. Besides the petitioner, the occurrence was seen by his second brother Faqir Muhammad and Master Muhammad Din aforesaid. The deceased succumbed to the injuries while he was being removed to the hospital on a cot. The petitioner then prided to the Police Station to lodge the report but happened to meet Habibur Rehman, A. S. I. (P. W. 9) in the outskirts of the village and lodged the report with him at 7 p.m. within half an hour of the occurrence.

The motive as mentioned by the petitioner in the initial report seas that about th-ea months ;prior to the occurrence, the respondent had tried to prevent them from burying the dead body of the wife of his brother Faqir Muhammad in the land belonging to the sister of the respondent and on that account he had quarrelled with the deceased.

On visiting the spot, the Investigating Officer recovered seven pieces of card-board, 17 pellets and a battery cell from the spat. The respondent was arrested on the following day. The licensed shot-gun of his father Bostan was taken into possession but was not found to be connected with the commission of the crime. At the trial, the prosecution examined Fazal Ilahi Petitioner (P. W. 6) as an eye-witness, Hafeez (P. W. 5) from whom the petitioner and his brother had made purchases shortly before the occurrence which took place close to his shop and Ghulam Hussain (P. W. 4) a resident of one of the neighbouring houses who on hearing the gun reports rushed to the spot and on Inquiry from the deceased was informed by him that he had beers fired at by Zamurad respondent. Thus the prosecution evidence of the ocular testimony of two eye witnessess, the oral dying declaration supported by the evidence of recovery of a battery cell, the medical evidence and that of motive.

While examined under section 342, Cr. P. C the respondent stated that he was studying in B. A. and was a resident of Haripur Collage, that the deceased had several enemies. He had a quarrel with his namesake. Zumurad sister's son of the wife of Fazal Ilahi petitioner had also fought at Rawalpindi with a driver from Mirpur, and yet another person Gul Zaman was also inimical to him. The implied suggestion was that the deceased might have been killed by some unknown assailant. He further stated that Fazal Ilahi petitioner was not present at the spot and that his name was mentioned on the basis of suspicion.

Placing reliance on the prosecution evidence the learned Judges found the offence fully established against the respondent and accordingly convicted him with an award of life imprisonment.

In appeal, however, the learned Judges found the respondent entitled to benefit of doubt on the grounds ; firstly, that in all probability the F. I. R. was recorded at the spot after some preliminary investigation ; secondly, that it had become fairly dark which rendered the identification of the assailant ratter difficult ; thirdly, that the oral dying declaration appears to be a piece of padding by the Police ; fourthly, that Master Muhammad Din in whose shop the deceased fell inured was withheld without good reason ; and lastly, that the directions of the injuries sustained by the deceased as revealed by medical evidence belied the ocular testimony inasmuch as the injuries ware not from upside downwards as they should have been so as to fall in line with the assertion that the respondent had fired while standing on the roof of his shop.

Learned counsel contended before us that in its appraisal of the evidence the learned Judges had completely ignored the significant fact that the respondent was a near relation of the petitioner whose daughter was married to his brother gad therefore, there was hardly any occasion for him falsely implicate him in substitution of the real culprit. It was next submitted that there were no good reasons for the learned Judges to disregard the testimony of Hafeez and Ghulam Hussain P. Ws. the two unconnected eye-witnesses who fully supported the eyewitness account furnished by Fazal Ilahi petitioner, to which strong corroboration was lent by recovery of a battery cell from the spot as established by the statement of Muhammad Anwar a wholly disinterested witness. It was next submitted that the learned Judges were not justified in taking the view that the occurrence had taken place when it has become quite dark and lastly that they were equally in A error in spelling out a conflict between the ocular evidence and the medical evidence. It was submitted that by so doing the High Court had ignored the significant fact that if on the one hand the assailant had fired from nine feet high roof of the house, the deceased had also ascended 4 or 5 steps one way to his house and therefore, the gradient had brought the assailant as well as the deceased almost to an equal level. As regards the disregard of the oral dying declaration, it was contended that in case the report had been recorded at the spot after preliminary investigation, an oral dying declaration would have found a mention in the F. I. R.

Having considered the contentions in the light of the record, we a inclined to think that the entire evidence should be reviewed in the Interest of justice. Accordingly, leave is granted. Non-bailable warrants returnable to D. M., Hazara shall issue against the respondent.

S. A. H. Leave granted.

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