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Criminal Appeal No. 26‑P of 1979, decided on 29th April, 1984.
(Against the judgment of the Peshawar High Court, Peshawar, dated 30th April, 1977, passed in Criminal Appeal No. 222/70).
‑‑ S. 302/34 ‑ Murder ‑ Re‑appreciation of evidence by Supreme Court‑Testimony of ocular evidence in conflict of medical evidence Direct motive for murder was shown to be against one prosecution witness who was spared though alleged to be present at spot Overwriting in F. I. R., making doubtful whether witnesses had gone to some place along with deceased‑Prosecution failing to prove result of examination of blood‑stained earth showing that even place of occurrence had not been fully proved on record ‑Held, it was an un-witnessed occurrence and accused were named merely on suspicion Supreme Court declined to interfere in finding of High Court of acquittal of accused.
M. Tariq Jamal, Advocate Supreme Court with M. Qasim Imam, Advocate‑on‑Record for Appellant.
Mian Muhammad Ajmal, Advocate Supreme Court and Nur‑Ahmad Khan, Advocate‑on‑Record for the State.
Muhammad Yousaf Saraf, Advocate Supreme Court with S. Safdar Hussain, Advocate‑on‑Record for Respondents Nos. 1 and 2.
Date of hearing, : 29th April, 1984.
This appeal is directed against the judgment of a Division Bench of the Peshawar High Court dated the 30th April, 1977, whereby the two respondents namely Janab Gul and Hamayun Khan have been acquitted of the charge of murdering Gul Faraz the brother of Amin Khan appellant.
2. The occurrence in this case took place on the 15th of December, 1975 at 12.00 noon, on a thoroughfare in the area of Village Gurozai at a distance of 6/7 miles from Police Station Latember in District Kohat. The F. I. R. was lodged at 1.30 p. m. by Amin Khan appellant.
3. The motive for the crime was stated to be that sometime before the occurrence Amin Khan appellant had given a beating to Dawar Shah, the father of the two respondents because of a dispute about the demarcation of land. This was deeply resented by the two respondents who committed the murder in order to avenge this insult.
The prosecution version of the incident is that the deceased accompanied Amin Khan (P. W. 1), his son Akhir Zaman and Zari Badshah (P. W. 2) were returning from the house of Aya Khan (D. W. .1), after offering Fateha on the death of the latter's grandson, when the two accused‑respondents who were armed with topaks confronted them. Hamayun respondent fired the first shot which hit the deceased on the back of his head, and the second shot, fired by Janab Gul respondent, hit the deceased on the chest at two places. Thereafter the culprits ran away from the spot. The witnesses brought a charpai and took the deceased to his house, where he breathed his last.
4. While the learned trial Judge accepted the evidence of the two eye‑witnesses and convicted and sentenced the respondents to death under section 302/34, P. P. C., the learned Judges in the High Court acquitted them on the ground that it was not safe to rely on the ocular evidence, inas much as the testimony of the eye‑witness was in conflict with the medical evidence. It was observed by the High Court that since the direct motive for murder was against Amin Khan P. W., it is not possible that he would have been spared if he was present at the spot. The High Court also observed that there was some overwriting in the F. I. R. which made it doubtful whether the witnesses had gone to the house of Aya Khan for offering Fateha along with the deceased. It appears that in expressing this view the learned Judges of the High Court were also influenced by the statement of Aya Khan D. W. that the deceased had come to his house alone. The learned Judges have also commented adversely on the failure of the prosecution to prove the result of the examination of the blood‑stained earth, observing that even the place of occurrence had not been fully proved on the record.
5. Amin Khan complainant felt aggrieved by the acquittal of the respon dents by the High Court and filed a petition for leave to appeal before this Court and leave was granted to him for reappraisal of the evidence.
6. We have heard the learned counsel for the appellant as well as the learned State counsel at length We have also gone through the impugned judgment as also the relevant portions of the evidence on the record. We are in respectful agreement with the view taken by the High Court in the impugned judgment It is Amin Khan appellant (complainant) against whom the accused‑respondents sought the revenge for having beaten their father and if he had been present along with Gul Fraz (deceased) they would have fired at him rather than the deceased and would not have allowed him escaped unhurt. We also respectfully agree with the view taken by the High Court that the medical evidence contradicts the version given by the eye‑witnesses. We feel that it is an un-witnessed occurrence and the accused‑respondents were named merely on suspicion. We do not find any flaw in appreciation of the prosecution evidence by the High Court and as such do not consider it a fit case for interference. The appeal is consequently dismissed.
M. Z. M. Appeal dismissed
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