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Criminal Petitions for Leave to Appeals 10/R and 11/R of 1985, decided on 26th January, 1986.
(On appeal from the judgments and orders of Peshawar High Court, Abbottabad Bench both, dated 23-12-1984 passed in Criminal Appeals Nos.2 of 1981 and No.6 of 1984).
---Art. 185(3)--Penal Code (XLV of 1860), S.302/307/34--Re-appraisal of evidence--Daylight murder--Motive--Pleas raised that eye-witnesses of occurrence were firmly believed by trial Court; judgment was based on surmises and conjectures; there was no material on record warranting acquittal; opinion formed on medical evidence was not bearing relevance to facts of case and acquittal was not in consonance with principles of safe administration of criminal justice--Leave granted for reappraisal of entire evidence.
Zafar Mahmood, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.
K.G. Sabir, Assistant Advocate-General N.-W.F.P. and Mian Shakirullah Jan, Advocate-on-Record (absent) for the State.
Date of hearing: 26th January, 1986.
-As both the above-mentioned Criminal Petitions for Leave to Appeal arise out of the same case, this order will, therefore, dispose of both the petitions.
2. Accused /respondents Daud Khan and Arshad Khan were charged for the murder of Amir Khan and attempt on the life of Lai Khan P.W. Daud Khan accused /respondent in Cr. P.L.A. 10/R of 1985 was convicted and sentenced by the learned Additional Sessions Judge, Haripur while Arshad Khan was absconder.
3. The prosecution story disclosed in F.I.R. recorded by Muhammad Nawaz P.W. on 10-10-1975 at about 1530 hours is that on the fateful day he alongwith his brother Misri Khan; his father Amir Khan deceased and uncle Lai Khan P.W.7 were proceeding to their Dhaka Rakh for cutting grass. On reaching the place known as Doge they saw accused/ respondent Daud Khan son of Karam Khan and his son Shamraiz Khan, duly armed with .12 bore shot-guns, Daud Khan fired at them hitting Amir Khan deceased who fell on the ground and died instantane, ply on the spot. Shamraiz Khan fired another shot at them as a restless of which Lai Khan P.W. received injuries and. he fell to the ground. The other witnesses; out of fear, ran away but the accused /respondent came in their pursuit and fired two more shots but luckily the witness escaped.
4. Motive stated by the prosecution is that both the parties have joined properties which have been privately partitioned but there remained some dispute regarding the same.
5. After the conclusion of the trial the learned Additional Session Judge, Haripur, per judgment, dated 12-11-1980 sentenced Daud loan to life imprisonment for murder of Amir Khan; and under section 307/34, P.P.C. sentenced him to four years' R.I. for firing at the P.Ws. and was also fined Rs.6,000 or in default, two years' R.I. Out of amount of fine, if realized, one-half was ordered to be paid to the heir, of the deceased while 1/4th to injured P.W. Lai Khan.
6. Arshad Khan accused /respondent in Cr. P.L.A. 11/R of 1985 Was also arrested later on. He was tried by the learned Sessions Judge, Abbottabad, who, vide his order, dated 27-2-1984, convicted him under section 302, P.P.C. and sentenced him to life imprisonment: and under section 307, P.P.C. to suffer two years' R.I. and fine of Rs.2,000 as compensation under section 544-A, Cr.P.C. or in default, further six months' R.I.
7. Both the accused/ respondents filed separate appeals in the Peshawar High Court which were heard together and the learned Division Bench acquitted both of them, vide the impugned judgments, dated 23-12-1984.
8. Mr. Zafar Mahmud learned counsel seeks leave to appeal on the ground that the order of acquittal is not in consonance with the principles governing safe administration of criminal justice; that there is no material on the record warranting the acquittal of the accused/respondents; that the learned trial Judge had firmly believed the eye-witnesses of the occurrence of this case; that the learned High Court Judges have expressed doubt about the presence of the P.Ws. on very minor contradictions and their judgments are based on mere surmises and conjectures; that the opinion formed by the learned Judges on the medical evidence has no bearing or relevance to the fact of the case as none of the witnesses had either stated or denied the deceased having taken or not having taken the meal in the morning; that one of the witnesses namely Lai Khan P.W.7 sustained injuries in the same transaction which resulted in the death of Amir Khan; that medial evidence shows nine fire-arm entry wounds on various parts on the body of Lai Khan P.W. and, therefore, his statement in the circumstances of the case cannot be discarded.
9. We have gone through the impugned judgment and the record before us and find substance in the arguments of the learned counsel. We grant leave in both the above-mentioned petitions for re-appraisal of the entire evidence.
M.I. Leave granted.
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