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Criminal Appeals Nos. 11‑P and 12‑P of 1984, decided on 18th February, 1986.

(On appeal from the judgment and order of the Peshawar High Court, dated 12‑12‑1982, in Cr. Appeals 318 of 1978 and 10 of 1980).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Penal Code (XLV of 1860), S. 302/34‑‑Leave to appeal granted to consider reappraisal of entire evidence on grounds urged by State.

‑‑‑S. 417‑‑Penal Code (XLV of 1860), S. 302/34‑‑Acquittal‑‑No defect or other infirmity existing in reappraisal of evidence by High Court which was in accordance with settled principles laid down by Supreme Court‑‑Evidence of prosecution witnesses not convincing‑‑Nothing substantial was pointed out to disbelieve view of trial Court about ocular testimony which was entitled to due weight by trial Court who had advantage of seeing witnesses deposing in its presence‑‑Order of acquittal passed by trial Court upheld.

M. Zahoorul Haq, Advocate Supreme Court for Appellant.

M. Shafiq Khan, Advocate Supreme Court with Nazir Ahmad, A.A.‑G (N.‑W.F.P.) for the Respondents.

Date of hearing: 18th February, 1986.

‑‑These two appeals by leave of this Court arise out of a consolidated judgment of the Peshawar High Court, dated 12th December, 1982, whereby two acquittal appeals filed by the State against the respondents were dismissed.

2. The occurrence in this case is said to have taken place on 6th July, 1977, at about 8 a.m., when Wazir Muhammad deceased was present in his house alongwith his brother Pirzada (P.W). In the meantime accused Mst. Abdul Marjan came at the door of his house and informed Wazir Muhammad deceased that some guests were calling him outside. The deceased went out followed by Pirzada (P.W.). According to the latter when he reached the door of the house, he saw in the lane accused Hayat Khan armed with dagger while accused Muhammad Amin and Shireen were armed with pistols. In his presence accused Mst. Abdul Majran called upon the other three accused to kill the deceased. Thereupon accused Hayat Khan opened the attack by inflicting dagger blows to the deceased followed by accused Muhammad Amin and Shireen firing three shots at the deceased with their pistols. Deceased fell on the ground as a result of these injuries and breathed his last on the spot. The motive for the crime, according to the prosecution, was that Mir Azam son of the accused Mst. Abdul Marjan had sold one Kanal of land to Wazir Muhammad deceased. The accused, however, were informed by someone that Wazir Muhammad had once again sold the same land to some other person. On this the accused annoyed and put the deceased to death.

3. The F.I.R. in this case was lodged on the same day at 10.15 a.m. at Police Station Topi about five miles from the place of occurrence. A.S.I. Ameer Muhammad, who investigated the case arrested accused Mst. Abdul Marjan on the same day but the rest of the accused named above were not traceable. Proceedings under section 512, Cr.P.C. were, therefore, taken against the allegedly absconding accused and accused Mst. Abdul Marjan was tried by the learned Additional Sessions Judge, Mardan at Sawabi. By judgment, dated 14th July, 1978, the learned Additional Sessions Judge acquitted Mst. Abdul Marjan. Accused Hayat Khan, Muhammad Amin and Shireen then surrendered with an application for pre‑arrest bail which was, however, dismissed. They were then arrested by S.H.0., Abdul Mabood Khan who submitted a supplementary challan against them and they were subsequently tried by the Additional Sessions Judge, Mardan at Sawabi. They were also acquitted of the charge by judgment, dated 22nd July, 1979.

4. The acquittal of the accused was then challenged by separate acquittal appeals by the State but by the impugned judgment a Division Bench of the Peshawar High Court dismissed the appeals.

5. Complainant Pirzada, being aggrieved by the judgment of the High Court came up to this Court by means of separate petitions for leave to appeal and leave was granted in order to reappraise the entire evidence on record on the grounds urged by the learned A.A.‑G. (N.‑W.F.P.).

6. The case against the accused rests on the ocular testimony of complainant Pirzada brother of the deceased and Atta Muhammad (P. W. ) also relation of the deceased, supported by the medical evidence and evidence of motive. According to the medical evidence the deceased had three stab wounds on the chest, right lumber region and left upper arm. He had also three fire‑arm wounds of entrance without charring located in the middle of chest left shoulder joint and left temporal bone of the skull. In the opinion of the medical officer death was caused by fire‑arm injuries which had directly damaged the heart the pericardium, the lungs, the pulmonary vessels and liver. The crime weapons were not recovered from the accused and there was no other incriminating circumstance connecting the accused with the crime. The accused in both trials denied the charge against them and pleaded their innocence. Accused Mst. Marjan denied that she was annoyed over the sale of the land sold by the deceased to some other persons. Similarly the accused Hayat Khan also repudiated the motive alleged by the prosecution and stated that Pirzada was the brother of the deceased while Atta Muhammad was the son of the cousin of grandfather of the deceased. Accused Muhammad Amin pleaded enmity of the prosecution witnesses as he is the tenant of the accused Hayat Khan.

7. Learned Judges of the High Court agreed with the view of the evidence taken by the Courts below in the two cases. As regards complainant Pirzada, the learned Judges came to the conclusion that he had attempted to make improvements in his testimony to make it believable. In this connection reference was made to the fact that the name of Mst. Zohra Begum wife of the deceased was not mentioned in the F.I . R. and yet the complainant had stated that she had also followed the deceased when he was called outside and witnessed the occurrence. Mst. Zohra Begum was, however, not examined at the trial. Another circumstance was that according to him he was serving in the Army at the time of the occurrence and had come on leave and was living with his deceased brother in the same house. He admitted that he is a married man and has got children. From this admission the learned Judges inferred that his wife and children must also be present in the house and yet he did not say anything about his wife also following the deceased. In our opinion it is wholly inconsistent with E the social customs and traditions of the people in the area that a wife would follow her husband outside the house when he was supposed to have gone to meet his guests. Another feature of the case noticed by the learned Judges was that the body of the deceased was found lying 100 paces away from the door of the house. But the version of complainant Pirzada indicated as though the deceased was done to death as soon as he had come out of the door. The nature of the injuries found on the body of the deceased also indicates, contrary to the ocular testimony, that the stab injuries were given to him by the assailant from a close distance, whereas shots were fired from some distance as there is no charring around the wounds. The ocular version would have us believe that all the assailants were together at the same place. The evidence of Atta Muhammad (P.W.) was also not found by the learned Judges of the High Court to be convincing. It was pointed out that according to his version accused Hayat Khan inflicted dagger blows with full force and yet the medical officer found the injuries to be simple. There was difference in the number of shots attributed to the accused in the F.I.R. and the oral version of this witness and the Court found that this difference was as a result of an attempt by this witness to improve his version so that it is in accord with the medical evidence. The reason for his presence at the scene, namely, that he was searching for a labour to work in his house was also found to be unconvincing. From the evidence of Abdul Mustaqim, Patwari, it was established that the deceased could not sell the land in his Khata as the mutation was rejected and, therefore, the motive alleged by the prosecution that the accused were annoyed on account of the sale of this land was also disbelieved.

8. We have heard the learned counsel appearing for the appellant and the respondents. We have also perused the evidence on record. The main submission on behalf of the appellant is that there was no serious enmity or blood feud existing between the parties and therefore, false implication of the accused is ruled out. The grievance of the appellant is that the learned Judges of the High Court have given unnecessary importance to minor contradictions and omissions in the ocular testimony and have discarded the same as untrustworthy on purely speculative grounds. Also the fact of abscondance of the three male accused was urged as sufficient corroboration to support the ocular testimony.

9. After hearing the learned counsel at length we find no justification to interfere with the orders of acquittal passed in favour of the respondents which proceed on valid and tenable grounds as state above. There is no defect or other infirmity in the appraisement of evidence by the High Court which is in accordance with, the settle principles laid down by this Court. Nothing substantial has been pointed out to disbelieve the view of the trial Court about the ocular testimony which is entitled to due weight as it had the advantage of seeing the witnesses depose in its presence.

10. For all the aforesaid reasons there is no merit in these appeal which are accordingly dismissed. Mst. Abdul Marjan (in Cr. A. 11‑P of 1984) is on bail. Her bail bond shall stand discharged and respondents Hayat Khan and others (in Cr. A.12‑P of 1984) who are in custody shall be released forthwith if not required in any other case.

M.Y.H. Appeals dismissed

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