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Criminal Petition No. 59‑P of 1981, decided on 15th February, 1986.
(On appeal from the judgment and order dated 28‑11‑1981 of the Peshawar High Court, passed in Criminal Appeal No.12‑D of 1980).
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S.417‑‑Acquittal‑‑No error pointed out in appraisal of evidence by High Court to justify interference with its conclusion of acquittal‑‑High Court fully considering evidence and giving cogent reasons for holding that no reliance could be placed on ocular testimony‑‑Petition for leave to appeal dismissed.
Munir Khan, Advocate Supreme Court and Qasim Imam, Advocate -on‑Record (absent) for Petitioner.
K.G. Sabir, Advocate Supreme Court for Respondents.
Date of hearing: 15th February, 1986.
Jamil Khan, the respondent herein, was convicted for the murder of Saadullah Khan on 16th of October, 1979, in the area of village Waruki, Tehsil Tank, District D.I. Khan.
The trial Court relied on the ocular testimony of two witnesses namely, Fatehullah Khan (P.W.8) and Asifullah (P.W.9), (the former is the brother of Saadullah Khan and the latter his nephew), who were alleged to have accompanied him in the morning for diverting water so as to be available at the site of construction of the house of Saadullah Khan; and the abscondance of Jamil Khan, who was arrested from a Bazar in Peshawar City after about a month of the incident.
The motive for killing the deceased was that one Khan Amir, a Tarboor of Jamil Khan, was murdered in 1942 and to avenge that murder he had killed the deceased. The respondent himself was aged about 18 years at the time of commission of the offence and was not even born on the date of that murder.
The High Court re‑appraised the ocular testimony and held as under:‑
"Thus we find that the statements of these two witnesses do not inspire confidence as they have been at variance on material points regarding their presence at the spot as well as giving correct details of the incident particularly the distance between the place where the deceased was present at the time he was fired at by the accused appellant. We also find that the diverting of water from the "Nalla" has not been established. Both the witnesses are at variance with regard to the purpose for which the water was to be diverted from a distance of four and a half miles. We are also not convinced with the motive. We also find it difficult to accept that a boy of 16/17 years of age would avenge the murder of his distant Tarboor after a period of 32 years. On record we find that the deceased had serious enmities with other people of his own village and of village Ali Khel recent than Khan Mir murder. Admittedly the appellant is a resident of village Ali Khel lying at a distance from the village of the deceased and it has not been explained how the accused appellant would know that on that day and time the deceased alongwith his companions would proceed for diverting water from a distance of four and a half miles so as to give him, (appellant) opportunity to way lay and murder the deceased.
It is also a matter for consideration that the occurrence took place at about 8‑30 a.m, and in the natural course in such circumstances would be to report the matter immediately instead of going to the village lying at a distance of two miles and a half to bring help for carrying the dead body to the police station. This we hold that the prosecution case is not free from doubts."
As to his abscondance, the High Court held that it was only for a period of 21 days for which he had given a plausible explanation. In the result, the High Court acquitted the appellant‑respondent.
The learned counsel for the petitioner while impugning the reasons given by the High Court has not pointed out any error in the appraisal of the evidence which might have justified our interference with the conclusion of acquittal. The High Court has fully considered the evidence and has given cogent reasons for holding that no reliance could be placed on the ocular testimony.
Accordingly, the petition fails, and we hereby dismiss it.
M . Y . H . Petition dismissed.
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