' ZAFFAR HUSSAIN MIRZA, J.-Petitioner Sher Hassan is aggrieved by the judgment and order passed by a Division Bench of the Peshawar High Court dated 2-11-1982 whereby Muhammad Nawaz, respondent No, 1, was acquitted of the charge of murdering his son Wazir Hassan deceased and seeks leave to appeal therefrom by this petition.
2. The facts disclosed in the first information report lodged by the petitioner were that on 6-7-1979 at Sham Qaza Vela (about sunset time) the petitioner and his wife Mst, Asal Bibi (P. W. 10) were present in their house, situated in village Mohammedzai. Their son Wazir Hassan deceased had gone out of the house a little before the occurrence. All of a sudden they heard the report of numerous gun fire shots and in order to know as to what had happened he and his wife went outside the house. When they reached Torpur under the railway line, the petitioner saw Wazir Hassan lying in injured condition and the first respondent alongwith Khalid and Bilo armed with guns standing at a little distance. On seeing the petitioner and his wife, the culprits opened fire at them but he took shelter behind a heap of stones and escaped unhurt, whereas after the departure of the assailants he found his wife Mst. Asal Bibi also injured as a result of the firing.
Another woman Mst. Nasreen who was returning to her house from the well also received injuries.
This report was first recorded by Habibullah Khan, S. H.
0. Police Station, Kohat City at 2-40 hours in the form of a statement at the Liaquat Memorial Hospital, Kohat where Wazir Hassan deceased was brought in an injured and unconscious condition.
3. The motive for the offence disclosed by the petitioner in the report was that four years prior to the incident his other son Umer Hassan had been murdered for which Qadar and Dilshad were charged. Bilo the absconding accused was also allegedly with them in the commission of the said crime and according to the petitioner this was the motive for the present crime.
4. The plea of the first respondent was of denial and he stated that he was being involved in this case on account of suspicion. As accused Khalid and Bilo were absconding and could not be arrested, only Muhammad Nawaz respondent was put to trial. At the trial the ocular version was furnished by the complainant Sher Hassan and Mst. Asal Bibi the mother of the deceased.
Corroboration was sought from the medical evidence and abscondence of the accused after the occurrence. The trial Court believing the testimony of the alleged eye-witnesses convicted the first respondent under section 302 of the Pakistan Penal Code and sentenced him to life imprisonment for the murder of Wazir Hassan deceased. He was also convicted under section 307 of the Pakistan Penal Code for the murderous assault on the life of Mst. Asal Bibi and sentenced to 10 years' rigorous imprisonment, as well as to fine of Rs, 5,000 payable to the heirs of the deceased or in default to suffer one year's rigorous imprisonment. On appeal by the convict, however, the High Court did not agree with the finding of the trial Court and acquitted the first respondent vide judgment dated 2-11-1982. It was held that the testimony of petitioner Sher Hassan was unreliable inasmuch as he has introduced improvements in his version, in order to bring his evidence in line with the testimony of his wife Mst. Asal Bibi. The improvements related to the time of the occurrence which in the F. I. R. Was mentioned as "Sham Qaza Vela" whereas in his statement before the Court the time of the occurrence given was "Sham Vela". Secondly the account as disclosed in the F. I. R. Indicated that the petitioner and his wife were inside their house when they heard the sound of the firing but in the Court the petitioner stated that Mst. Asal Bibi followed her son and was present outside the house near the spot when the occurrence took place. The presence of Mst. Asal Bibi as a witness of the occurrence was, therefore, doubtful. Basides the F. I. R.
Indicated that he himself was not an eye-witness of the occurrence. The presence of the deceased a little time before the occurrence in the house was also unlikely in view of the admissions made by the petitioner to the effect that deceased was working as an employee of the flour mill and having regard to the working hours at the mill, irrespective of in which of the three shifts he worked, he would not be free at the time of the occurrence. His evidence was also found to be inconflict with the medical evidence which indicated two effective shots fired at the deceased, whereas he says that in all 10-12 shots were fired including three shots in his presence, one of which .Had hit Mst.
Nasreen, who was not produced. As regards Mst. Asal Bibi, though she had received a grazing wound, it was held that she may be present in the vicinity but there was reasonable doubt as to her having witnessed the occurrence. In this connection in the first place reference was made to the statement of the I petitioner in the F. I. R. That she was inside the house when the shots were fired.
Secondly in her own account of the occurrence she stated that she was in the house of one Hakeem Khan when she heard the firing outside and was attracted to the scene of occurrence.
According to her she fell over her son who was injured and received the injury from a shot fired at her from close range. The learned Judges of the High Court considered from the nature of the injury that the same was not the result of a shot fired at a close quarters. Finally the house of Hakeem Khan being situated at a distance of 100 paces from the scene of occurrence, it was considered unlikely for this witness to have reached the spot when the attack was still on.
5. After hearing the learned counsel and perusing the evidence on record we find no force in this petition. We do not agree with the contention that the appraisal evidence by the High Court is in any way defective or improper, as in our view, it proceeds on well-established principles for the appreciation A of evidence in criminal cases. The testimony of the alleged eye-witnesses, containing as it does contradictions and improvements reflecting upon the credibility of the witnesses, is not of the quality on which conviction on a capital charge could be sustained.
6. In the result this petition fails and is accordingly dismissed.