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Criminal Petition No. 13-P of 1980, decided on 13th November, 1982.

(Against the order of the Peshawar High Court dated 15-1-1980, passed in Criminal Revision No. 51/79 and Criminal Appeal No. 99 of 1979).

Penal Code (XLV of 1860)-

S. 302 read with Constitution of Pakistan (1.973), Art. 185 (3) Murder-case-Leave to appeal-Prosecution witnesses A and N for good reasons believed by High Court to be chance witnesses and have not seen occurrence-High Court observing as to complainant that although he could not be termed as a chance witness and probably remained present at spot yet in view of enmity and blood feud existing between parties his testimony could not be relied upon without independent corroboration as to identity of assailants - No such corroboratory evidence, however, available on record-High Court, in circumstances, held, rightly abstained from relying on testimony of complainant alone for maintaining respondent's conviction and justified in acquitting him for lack of evidence.

Jan Muhammad Khan, Advocate Supreme Court with Noor Ahmad Khan, Advocate-on-Record for Petitioner.

Muhammad Ajmal, A. A: G. with M. Qasim Imam, Advocate-on-Record for Respondent.

Date of hearing : 13th November, 1982.

ASLAM RlAZ HUSSAIN, J.-This petition by Sher Baz Khan complainant is directed against the acquittal of Dervaish respondent by the High Court of Peshawar by its judgment dated 15-1-1980.

2. Dervaish respondent and Gul Nawaz (absconder) are alleged to have fired at and killed Naushad deceased. The occurrence in this case took place at 9.45 a.m. on 23-2-1978 near Village Charsaddah. The F. I. R. was lodged by Sher Baz Khan father of the deceased at 9.30 a.m. at Police Station Parang which was recorded by Zulfiqar Hussain Shah, S. H. O. (P. W. 9).

3. The prosecution story, briefly, is that the deceased and his father Sher Baz Khan were both employed in Charsaddah Sugar Mill. They were returning on a bicycle at 8 a.m., after having worked at the mill during the night shift. The bicycle was being paddled by the deceased while his father was sitting on the back seat. When they reached two furlongs from the mill they were fired at by Dervaish and his brother ineffectively. Sher Baz Khan jumped from the bicycle and ran towards an adjacent field while the deceased tried to escape by rushing away from the spot on his bicycle. The two accused fired at him again as a result of which he fell down from the bicycle. The accused then rushed towards him and fired another shot at him. As a result of the injuries received by him Naushad died at the spot whereafter the two accused ran away. Apart from Sher Baz Khan the occurrence was also seen by Muhammad Akbar and Muhammad Nazif (P. Ws. 7 and 8 respectively).

The motive for the occurrence is stated to be that two months prior to the occurrence there was a fight between the parties over the possession of akkotha in which Bakh Baz the father of the accused respondent received injuries, of which he died subsequently. Sher Baz P. W. and the deceased were accused in this case.

4. After recording the F. I. R. the S. H. O. went to the spot and recovered the bicycle of the deceased as also two empty shells (Exh. P. 2) of .12 bore and one empty shell (Exh. P. 3) of .303 bore.

5. At the trial the prosecution mainly relied on the testimony of three witnesses, namely, Sher Baz Khan (P. W. 6) father of the deceased, Muhammad Akbar uncle of the deceased (P. W. 7) and Muhammad Nazif (P. W. 8), the medical evidence and the motive. As already mentioned Gul Nawaz co-accused absconded and only Dervaish accused was sent up for trial.

6. The accused denied his guilt and pleaded innocence. The learned trial Judge, however, relied on the prosecution evidence and convicted him under section 302, P. P. C. for which he was sentenced to death. Feeling aggrieved he filed an appeal against his conviction and sentence before the High Court which, by its judgment accepted his appeal and acquitted him.

Hence the present petition.

7. We have heard the learned counsel for the petitioner at length and gone through the relevant portions of the impugned judgment. We are inclined to agree with the reasons given by the learned High Court that Muhammad Akbar had Muhammad Nazif were chance witnesses and had not seen the occurrence. As to Sher Baz Khan complainant (P. W. 6) it' was observed that although he could not be termed as a chance witness' and was probably present at the spot yet in view of the enmity and blood feud existing between the parties, the testimony of this witness cannot be-A relied upon without any independent corroboration as to the identity of the assailants. But unfortunately, there is no such corroboratory evidence available on the record. We are therefore of the view that in the circumstances of this case the learned High Court rightly abstained from relying on the testimony of Sher Baz Khan, complainant (P. W. 6) alone, for maintaining respondent's conviction and was justified to acquitting him for lack of evidence:

In view of the above discussion we find no merit in the petition which is consequently dismissed.

S. A. H. Petition dismissed.

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