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Criminal Petition for Special Leave to Appeal No. 16‑R of 1978, decided on 11th February, 1980,

(On appeal from the judgment and order dated 13‑3‑1978 of the Pesha war High Court at Peshawar in Criminal Appeal No. 169/77).

Penal Code (XLV of 1860)

---S. 302/34 read with Criminal Procedure Code (V of 1898), S. 417 Murder‑Accused acquitted by High Court on benefit of doubt on account of existence of reasonable possibility of false implication and not because of rejection of eye‑witnesses' testimony as false‑Judgment of High Court showing conscious application of mind to facts of case and considerations weighing with High Court neither irrelevant nor insubstantial‑Held, conditions for setting aside an acquittal not satis fied in case.

Zafar Mahmood, Senior Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 11th February, 1980.

ZULLAH, J

.‑‑The acquittal by the‑ Peshawar High Court of the respondent in a case registered against him and his elder brother under section 302/34, P. P. G., has been called in question through this petition for leave to appeal.

According to the prosecution, the respondent and his co‑accused who allegedly is still an absconder, waylaid Ghulam Rasul deceased a boy of 15 years of age. They were armed with guns. The respondent asked the absconder to kill (MARO) Ghulam Rasul whereupon the latter fired a shot at him, resulting in his death. The motive mentioned in the F. I. R. was that the deceased was suspected to have stolen a gun belonging to a brother of the accused. Learned counsel, however,

Las explained that Raw this occurrence was also a sequel to the enmity between the families of the parties‑Ghulam Rasul's father‑also it is stated was murdered, by the respondent s party.

The prosecution, amongst others, relied on testimony of two eye witnesses. The defence plea was that of denial. The learned trial Judge convicted the respondent under section 304, P. P. C and sentenced him to 10 years' rigorous imprisonment and also fine of Rs. 2,000, on a finding that the use of word MARO' by the respondent signified that he did not intend killing' of the victim.

On appeal from conviction a learned Division Bench of the Peshawar High Court held that "exhortation by younger brother to the elder does not appear to be in accord with normal code of conduct, particularly when both are armed, therefore, the factor of false implication with the real culprit cannot be ruled out". Accordingly, giving him benefit of doubt the respondent was acquitted. The petitioner's revision ‑for enhancement of sentence was also dismissed.

Learned counsel has vehemently contended that the learned Judges in the High Court, fell into error because as argued, the respondent could not be acquitted without disbelieving the eye‑witnesses. He also pointed out that the testimony of the eye‑witnesses was not subjected to analysis and. criticism so as to discard it against the respondent.

16 We do not agree with the learned counsel that in the circumstances of this case, the respondent could not be acquitted without disbelieving the eye‑witnesses. He has been extended only benefit of doubt on the question of the part attributed to him by the prosecution. It does not mean that the eye‑witnesses deliberately falsely implicated him. Benefit of doubt has been extended only on account of existence of reasonable possibility and not because of rejection of the testimony of the eye witnesses as false.

The impugned‑ judgment shows conscious application of mind to facts of the case, including the circumstance that the prosecution case is supported by ocular evidence. The considerations, which weighed with the learned Judges are neither irrelevant nor insubstantial, The condi tions for setting aside an acquittal are not satisfied in this case. This petition accordingly is dismissed.

S. S. Q. Petition dismissed.

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