1. ' MUHAMMAD HALEEM, ACTG. C. J.-This is a direct appeal under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973, and arises from an order of the Peshawar High Court, Peshawar, dated the 17th of December, 1981, whereby the acquittal of the appellant was set aside, and he was convicted under section 302, P. P. C. And sentenced to suffer imprisonment for life and to pay a fine of Rs, 2,000 as compensation under section 544-A, Cr. P. C. Or in default to undergo R. L for six months.
2. ' The appellant alongwith his father Azim Khan and Muhammad Ayaz Khan, a cousin of his father, were tried for the murder of Mir Sahib Shah, but were acquitted by the Sessions Judge, Bannu by judgment dated the 31st of October, 1977. The State preferred an appeal against their acquittal which succeeded to the extent as aforestated.
3. ' The prosecution case was that the deceased was facing trial alongwith another person in a case registered under section 182, P. P. C. On 31st of May, 1976, as he alongwith Gulabat Khan and Abbas Khan were returning to their houses at Rotivela time after attending the hearing of the case, the appellant and his two accomplices emerged from a lane, in Mohallah Tori Qazi, Bannu City, and while Azim Khan gave a Lalkara, the appellant and Muhammad Ayaz Khan, who were armed with .12 bore pistols fired a shot each at the deceased, who was then near about the shop of Zaffar Ali and ahead of his companions. The shot fired by Muhammad Ayaz Khan went amiss, but that fired by the appellant struck the deceased on his back felling him to the ground, who succumed to his injuries. It so happened that before any step could be taken to lodge the report, Muhammad Khan, S. H.
4. 0., Police Station City, himself arrived at the spot and recorded the statement of Gulabat Khan at, 10.15 a. m. Which was later transcribed in 154 (Cr. P. C.) book.
5. ' Aziz Khan was arrested on the 4th of June, 1976 and Muhammad Ayaz Khan on the 11th of June, 1976. The appellant was arrested on the 4th of August, 1976.
6. ' The motive imputed was that a year before the present occurrence Muhammad Khan, a brother of Azim Khan and uncle of the appellant, was murdered. In that case Munawar Khan, the brother of the deceased and Khan Malook were charged. Khan Malook was earlier charged for the murder of his own father Sarbland, a brother of Azim Khan in respect of which an F. I. R. Was lodged on the 4th of March, 1974. Munawar Khan had absconded and Khan Malook was murdered before the present incident for which murder the deceased was charged. The murder of Muhammad Khan was apparently the reason assigned for the murder of the deceased.
7. ' The trial Court did not accept the motive as it was of the opinion that Azim Khan ordinarily would have taken revenge from Munawar Khan or Gulabat Khan, but not from the deceased to whom his sister was married, and thus cause her to become a widow and for that matter the appellant would also have a soft corner for the deceased. Another fact which prevailed with the trial Court was that the deceased himself caused the murder of Khan Malook and for this reason he may have had enemies in-the village who would be prone to take revenge from him. The trial Court was further impressed by the fact that although the incident had taken place in the Bazar but none of the shopkeepers had come forward to depose against the appellant and his accomplices. Added to it was the feature that neither Gulabat Khan nor Abbas Khan utter any hue and cry to alert the deceased of the imminent attack on him or take any step to apprehend the assailants. That they were also unarmed was unusual as they had enemies on account of blood-feud. In this context the Court doubted the presence of Abbas Khan as he failed to give any reason as to how he left his duty as Octroi Moharrir at Sukari Gate (Octroi Post), which was a miles away from the spot as he was not on leave that day. As to why he should have accompanied the deceased when he was not involved in any case also lent support to the conclusion as to his presence being doubtful. Gulabat Khan was the real brother of the deceased and his evidence stood on no higher footing than Abbas Khan who was his Tarboor. The trial Court was also not convinced About the time of occurrence as the S. H.
0. Had failed to mention the exact time in the F. I. R., and all that he stated was Rotivela, which showed not only that the exact time was not known but also left room for the witnesses to perjure.
8. Read in this context was the doubtful feature about the arrival of the S. H.
0. At the spot. The trial Court took note of the explanation given by the S. H. O. In examination-in- chief he stated that he was on "Gasht" alongwith a police party when he got the news of the murder at Ghai Bazar. In cross-examination he gave another explanation that he got this news near City Police Station from a "cycle rider". The real reason for repairing to the spot, in the opinion of the Court, was concealed and that Rotivela was deliberately written apparently for the reason that no one was present to give the information as to the time of occurrence and it was after having done some preliminary investigation that the statement of Gulabat Khan was got recorded.
9. However, what mattered was that if Gulabat Khan had been there then it could not have been difficult for him to go to the Police Station which was a furlong away from the spot and lodge the report instead of the Investigating Officer repairing to the spot and recording his statement. The further reason which militated against the mention of the Rotivela time was that the witnesses in their evidence had given Roti-time, i. e., 9.0 or 9.30 a. m. Which if correct would have been so mentioned in the F. I. R. This led the trial Court to believe that it was an unwitnessed crime, the more so as Muhammad Ayaz Khan's presence was established at Sabri Cotton Mills, Kohat, where he was employed as a worker yet the evidence collected to establish his presence was wilfully suppressed by the S. H. O. His implication was, accordingly, false. The trial Court, accordingly, held that these witnesses were not only interested but inimical, and if at all their evidence had to be accepted it could only be if it was independently corroborated, which was not the case here. For all these reasons, the trial Court held that the prosecution failed to establish its case beyond reasonable doubt and acquitted them.
10. ' The High Court requisitioned the file of the case pending against the deceased and examined Saidan Shah, a clerk, who deposed to the fact that the deceased and the co-accused attended the hearing of the case on the 31st of May, 1976. However, from the record of this case, the presence of the other two witnesses was not established and the question remained as to whether they accompanied the deceased on his errand to the Court. While reappraising the evidence, the High Court observed that it was not uncommon for the close relatives to accompany the accused persons attending the hearing of the criminal cases in the background of enmity between the parties. This possibility may or may not be eventually true, and for this reason it should have been judged in the context of the relevant facts on record. The High Court, it seems, has not given any treatment to the trial Court's opinion while evaluating the testimony of the eye-witnesses qua their credibility and to us it appears that the reasons given by the trial Court were cogent and the view taken could have been legally formed while holding that the prosecution had failed to bring home the guilt not only to the appellant, but also to those acquitted. The High Court while dismissing the appeal against Muhammad Ayaz Khan and Azim Khan held that the role of Lalkara or the firing of ineffective shot are common features while implicating other persons, and, therefore, the charge against them was doubtful. Additionally, the High Court also accepted the plea of alibi taken by Muhammad Ayaz Khan while giving to him the benefit of doubt.
11. ' As against Misal Khan, the High Court held his abscondence to be a corroboration of his guilt, but the trial Court did not take this into consideration as the prosecution had failed to bring on record material to establish that he had absconded. In this regard also the High Court did not advert to the failure on the part of the prosecution to establish his abscondence but only took into consideration that he was not to be found for some (sic) a.m. And his arrest from village Patan at 2-25 hours on the 4th of August, 1974 in a raid conducted by the Investigating Officer as proving his abscondence. It may be true that he was arrested from that village after sometime but nonetheless the requirement had to be fulfilled if the circumstance was to be used as an incriminating piece of evidence against him. The High Court took into consideration the ipse dixit of the witnesses that it was the shot fired by Misal Khan which was effective. How could the witnesses say that when according to them both the appellant and Muhammad Ayaz Khan had fired a shot each from a very close distance. Equally how could there be only one effective shot if the distance was so close and why would the shot fired by Muhammad Ayaz Khan become ineffective.
12. Obviously this role was assigned to implicate the latter although his presence was not established at the spot. Accordingly, few fail to see how the High Court could have placed reliance on the mere words of the witnesses in regard to Misal Khan's role in having fired an effective shot. It goes without saying that the ocular testimony was interested and inimical, and if it was disbelieved as against those whose appeals were dismissed, it could not be accepted against the appellant without independent corroboration, which was not available. Concluding we agree with the opinion of the trial Court that for the reasons given by it, the involvement of the, appellant was not established beyond a reasonable doubt.
13. ' We would, therefore, given to him the benefit of doubt and acquit him. The appeal is allowed and the appellant should be released forthwith, if not wanted in any other case.