' ZAFFAR HUSSAIN MIRZA, J.-Petitioner Payo Din who is the father of deceased Musharraf Khan seeks leave to appeal from the judgment and order dated 24-5-1981 by a Division Bench of the Peshawar High Court, Peshawar whereby 'respondent Hamidullah Khan was acquitted of the charge of murder under section 302/34 of the Pakistan Penal Code and his conviction recorded by the learned Sessions Judge, Bannu was set aside.
2. The petitioner had lodged F.
1. R. With the City Police Station, Bannu on 25-10-1977 at about 15.15 hours, stating that he alongwith Shah Muhammad (P. W. 7) and Ghulam Nawaz (P. W. 8), his nephews, had gone to the bazar for sundry purchases and found that the deceased was sitting in the shop of Sher Ali Baz in Tonchi Bazar at 1500 hours. While they were sitting at the shop alongwith the deceased, soon afterwards the first respondent alongwith absconding accused Saleem Khan appeared at the scene armed with '12 bore D. B. Shot guns and fired two shots each at the deceased who was hit and expired instantaneously. The motive for the crime was that there was enmity between the parties as they were involved in criminal cases which were pending during the days of the occurrence.
3. At the trial the prosecution supported their case with the ocular testimony of the three witnesses, namely, petitioner Payo Din father of the deceased, Shah Muhammad (P. W. 7) and Ghulam Nawaz (P. W. 8) both nephews of the petitioner. There was no other circumstantial evidence produced except the medical evidence and the recovery of blood-stained earth, blood-stained `Moraz', four switch boards from the shop which were damaged by firearm shots having pallet marks, two wads, 21 card boards discs, 17 pallets and some pieces of broken glass of bulb from the spot.
4. The first respondent in his statement pleaded his innocence and alleged his false implication in the case due to enmity. He further stated that Muhammad Khan S. H. O. Investigating Officer was instrumental to his being falsely implicated and that he had enmity with Saleem Khan the absconding accused.
5. The medical evidence revealed that there were about 15 firearm injuries on the deceased. The trial Court believing the ocular testimony, convicted the first respondent and sentenced him to life imprisonment and a fine of Rs, 5,000, or in lieu one year rigorous imprisonment. But the learned Judges of the Division Bench of the High Court did not agree with the finding of the trial Court and held that the case against the first respondent was doubtful, mainly on two grounds, namely, that it had come on the record that Saleem Khan absconding accused and the first respondent were on inimical terms as the first respondent had fired upon him some 2/3 years prior to the occurrence, and that the conduct of the S. H.
0. Muhammad Khan (P. W. 9) was also not above-board as he was on inimical terms with the first respondent. The High Court, therefore, acquitted the first respondent and set aside the conviction by the impugned judgment.
6. In support of the petition Mr. Sardar Khan, learned Advocate for the petitioner contended that the two main grounds already referred to on which the judgment of the High Court proceeds are not tenable as the learned Judges in taking this view have misread the evidence on record. In this connection the learned counsel pointed out that it is also in the evidence that the case between the two accused was compromised and in that case it is reasonable to expect that they could join hands to commit the present crime. As regards the other ground it is submitted that the learned Judges did not take into consideration the fact that the F. I. R. Was promptly recorded by A. S.-I.
Shahabuddin Khan (P. W. 3) in the absence of S. H. O. Muhammad Khan (P. W. 9) against whom enmity was alleged, which exclude the possibility of false implication of the first respondent at the instance of the S. H.
0.
7. After hearing the learned counsel we consider that this case requires to be re-examined as it involves a broad daylight occurrence in a bazar which appears to exclude any possibility of substitution of the real culprits. Further the contentions advanced by the learned counsel are prima facie supported by the record. The petition is accordingly allowed and leave to appeal is hereby granted. Non-bailable warrants to issue against the first respondent returnable to the District Magistrate, Bannu.