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Petition for Special Leave to Appeal No. 17‑P of 1977, decided on 15th May, 1979.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated the 4th of May 1977 in Criminal Appeal No. 168 of 1976).

Penal Code (XLV of 1860)‑

‑‑ S. 302/307/149‑[Murder‑case] ‑ Appreciation of evidence Prosecution eye‑witnesses belonging to a party admittedly having blood feud with another party to which accused belonged‑Witnesses as such interested witnesses‑Fact of two empty cartridges recovered by Investigating Officer being found to have been fired from one gun while third one from another gun‑Does not fix identity of persons having fired fatal shots‑Injuries to deceased and prosecution witness likely to have been easily caused by two accused, one absconding and other since dead‑Prosecution, however, involving as many as five persons of opposite side‑Case, in circumstances, not such evidence of which requires to be reappraised‑Petition for leave to appeal dismissed ‑Constitution of Pakistan (1973), Art. 185 (3).‑[Evi dence‑Witness].

Mohammad Afzal Bangash, Advocate and M. Qasim Imam, Advocate- on‑Record for Petitioner.

Amirzada Khan, Asstt. Advocate‑General (N.‑W. F. P.) for the State.

Nemo for Respondents Nos. 1 to 3.

Date of hearing :15th May, 1979.

‑This petition for special leave is directed against the judgment of a Division Bench of the Peshawar High Court dated the 4th of May, 1977 acquitting the three respondents, who had been convicted by the Sessions Judge for offences under sections 148 and 302/307/149, P. P. C.

2. The facts according to the prosecution case briefly are that Mohammad Din, Mohammad and Mohammad Zaman, respondents, together with Bashir Ahmed (since dead) and Saleh Mohammad (abs conder) attacked Maloom Shah (deceased) when he was returning to his village from another village after having purchased some fertilizer and Aata. He was sitting in a Rehra driven by a buffalo. His brother Mutwakil Shah P. W. (first informant) was walking ahead of the Rehra while three persons, namely, Mir Alam P.W. 7, Shah Jenan P.W. 9 and Rahim Shah (not produced) were following him on foot at some distance. When they reached Shah Alam bridge, they saw Saleh Mohammad (absconding accused) standing there armed with a Tamancha' while the remaining four were present, nearby armed with 'Topaks'. Saleh Mohammad came near Mutwakil Shah PW ; greeted him and then fired at him with his Tamancha, but missed. Thereafter the remaining four accused opened firing at Mutwakil Shah and one bullet hit him on the left thigh. Saleh Mohammad (absconding accused) fired at Maloom Shah deceased which hit him. As a result Maloom Shah died at the spot. The incident was witnessed by Mir Alam P.W. 7, Shah Jehan P. W. 9 and Rahim Shah (not produced).

3. The motive for the offence is stated to be that 8/9 months prior to the occurrence the son of Mohammad Din respondent was murdered and he suspected Mutwakil Shah P.W. for that murder. Since Saleh Mohammad had absconded only the remaining four were tried, they were convicted and sentenced for the offences mentioned in paragraph No. 1.

4. Bashir Ahmad accused died in Jail therefore only the remaining three filed an appeal before the High Court. A Division Bench of the Peshawar High Court accepted the appeal and acquitted the three respondents vide judgment dated the 4th of May, 1977. Aggrieved by that judgment Mutwakil Shah complainant has filed the present petition for special leave to appeal.

5. We have heard the learned counsel for the petitioner at length and have also gone through the judgment and the relevant portion of the evidence. We are of the view that the learned Division Bench of the High Court has delivered an elaborate and well‑reasoned judgment and have rightly disbelieved the eye‑witnesses who admittedly belonged to one faction of the Mazdoor Kisan Party which had blood feud with the other faction of that party, to which the accused persons belong and are, as such, interested witnesses.

6. The fact that two of the empty cartridges recovered by the investigating officer were found to have been fired from one gun while the' third one from another gun, does not fix the identity of the persons who had fired the fatal shots. The injuries to Mutwakil Shah P.W. and the deceased could have easily been caused by two persons, namely, Saleh Mohammad (absconder) and Bashir accused who has since died. But the prosecution witnesses have involved as many as five persons of the opposite side. In this view of the matter we do not consider to be a case in which the evidence requires to be reappraised.

The petition is therefore dismissed as having no merit.

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