' MIAN BURHANUDDIN KHAN, J.-This order will dispose of Criminal Petitions for Leave to Appeals Nos.
8, 10 and 16 of 1983 directed against the judgment and orders of Peshawar High Court dated 25-1- 1983 passed in Criminal Appeals Nos. 84 and 85 of 1980 and Criminal Revision No, R/65 of 1980, whereby Afsar Khan and Mir Afsar Khan sons of Ziarat Khan accused/respondents residents of village Yar Hussain, Tehsil Swabi, District Mardan were acquitted of charges under section 302, read with section 34, P. P. C. And under section 13-A of the Arms Ordinance.
2. The two accused/respondents, named above, were tried by the learned Additional Sessions Judge, Mardan at Swabi, and were convicted and sentenced to life imprisonment under section 302, read with section 34, P. P. C. And a fine of Rs, 2,500, each, or in default of payment of fine, they were ordered to undergo further R. I. For one year each. Fine, if realized, was ordered to be paid to the legal heirs of the deceased Zaman Khan as compensation under section 544-A, Cr. P. C. They were further indicted for an offence under section 13 of the Arms Ordinance for being in possession of an unlicenced DB gun on the day of occurrence, soon after the murder of Zaman Khan deceased, and were sentenced to three years' R. I. And fine of Rs, 500, or in default of payment of fine, to further R. I. For six months each.
3. The two convicts preferred their appeals against their conviction and sentence in the Peshawar High Court while Zahir Khan son of Zaman Khan deceased, also filed a revision petition for enhancement of their sentence from life imprisonment to death. Both the appeals and revision were disposed of by a Division Bench of the High Court vide impugned judgment acquitting the two appellants/respondents of all the charges and, hence, the revision petition automatically failed.
4. Prosecution case is that on 9-2-1979 at about 11 hours Zaman Khan deceased alongwith his son Zahir Khan P. W. 1, was busy in cutting clover in his field situate at a place known as Wand Bandok in the area of village Yar Hussain. Ali Sher P. W. 2 was also present and sitting on a pulla'. The two respondents Afsar Khan and Mir Afsar Khan came armed with topaks from the side of their dera and fired 3/4 shots at Zaman Khan who was hit and died instantaneously. Zahir Khan and Ali Sher being empty-handed ran for their lives in the direction of their dera lying at some distance from the spot. Thereafter, the two accused/respondents decamped from the scene of occurrence. Ali Sher P. W. Brought a cot and with the help of villagers, carried the dead body to the police post, Yar Hussain where Zahir Khan lodged the report Exh. PA/1 which was recorded by Fida Muhammad Khan S. I. P. W. 12 who was then Incharge of the police post. A Me registered in Police $1110911 Kau Mau and the said Officer completed the investigation and submitted the challan. Both the accused/respondents were arrested on the same day by Nasib Gul, A. S. I. P. W. 11 alongwith two D.
B. And one S. B. Shot gun and bandolier containing live cartridges.
5. The two witnesses Zahir Khan and All Sher gave ocular account of the occurrence. Zahir Khan also furnished the motive for the crime a blood feud between the parties i. e. In 1962 father of the accused/respondents namely Ziarat Khan was murdered, his father Zaman Khan deceased was charged for it but was acquitted.
6. Nasib Gul P. W. 11 stated that on the day of occurrence at about 10-50 a. m. He, alongwith two constables, had gone to Pakistan Tobacco Company's Depot for preparing a list of employees and there he heard the report of 3/4 gunshots. On coming out of the Depot he heard an alarm to the effect that Zaman Khan was murdered. He saw the two accused/respondents running armed with guns. He chased them and arrested them near the Hujra Sabz Ali Bacha. The two persons arrested disclosed their identity and names as Afsar Khan and Mir Afsar Khan. He further stated that Mir Afsar was carrying a D. B. Shotgun as also a S. B. Shotgun alongwith bandolier containing 6 to 10 cartridges while Afsar Khan was armed with D. B. Shotgun and bandolier containing seven cartridges. He took these fire-arms into possession vide Memo. Exh. P. W. In the presence of the marginal witnesses. He found the guns smelt of freshly discharged gun powder.
7. Dr. Muhammad Shah conducted post-mortem examination on the dead body of Zaman Khan deceased on 9-2-1979 at 1-30 p. m. And found as many as 12 fire-arm injuries consisting of entry and exit wound of various dismensions. At the seat of Injuries Nos. 1, 2 and 10 he found charring present.
8. The accused were examined but they denied the charge and pleaded innocence. The learned trial Judge convicted both the accused/respondents and sentenced them as mentioned above.
9. We have heard the learned counsel for the petitioner. He contended that in the impugned judgment the learned High Court Judges have ignored the ocular testimony of the two natural witnesses namely Zahir Khan and Ali Sher who have given a very straight-forward and correct narration of the facts resulting in the death of Zaman Khan deceased; that their testimony was fully supported by the recovery of fire-arms from the two accused/ respondents immediately after the occurrence when they were fleeing after perpetration of the crime; that no proper appraisal of evidence of Nasib Gul, A. S. I. Regarding the recovery, has been made and thus the impugned order suffers from legal infirmities.
10. We have gone through the judgment of the learned Judges of the High Court and find that their appreciation of the prosecution evidence is unexceptionable. The two eye-witnesses namely Zahir Khan and All Sher being closely related to the deceased with background of enmity are 'interested' witnesses their statements would, therefore, require corroboration for safe dispensation of justice.
However, corroboration is sought by the prosecution in the form of recovery from the accused/respondents, of the weapons of offence but except the statement of Nasib Gul A. S.4.
There is no other evidence to establish the recovery of the so-called weapons of offence. Nasib Gul was examined at the trial and in the cross-examination he was questioned whether he had made any entry in the daily diary Exh. D. C. At the police post Yar Hussain regarding his visit to the Pakistan Tobacco Co. Depot for preparing a list of employees of the said Company, which fact is absent from a copy of which placed in the file of the case. It shows at S. No, 6 dated 9-2-1979 that he (Nasib Gui) left the police post at 8.30 a. m. Alongwith two armed Constables for the purpose of service of summons and patrol". No mention has been made of an order he allegedly received from the D. S. P.'s Reader directing him to prepare a list of the employees of Pakistan Tobacco Company. As such his presence at the spot at the relevant time becomes highly doubtful. In cross- examination he also admitted: "In view of the strikes in the companies, an order was received from the office of the D. S. P. Swabi to prepare the list of the names of such employees who were actually working in the Company and, therefore, I had gone there for that purpose. This order was not in writing but it was only a telephonic message by the Reader Abdul Baqi. However, I had not mentioned the abovementioned facts in my report charging the accused under section 13 A.
0. Namely a verbal message on account of the strikes in the Company from the Reader to the D. S. P. Was received on telephone to prepare the list of these working in the Company "
' The witness also admitted that he had not made any person from the public an attesting witness to the recovery of the respective weapons from the accused/ respondents.
11. Moreover, from the record the learned High Court Judges found an application of two Officers namely Abdul Hamid Khan D. S. P. And Sherzada Khan A C Swabi who were examined as C. Ws. Nos.
2 and 3 by them vide order It is admitted that the D. B. Shotgun No, 62914 was transferred to Abdul Hamid Khan C. W. 2 as reward in connection with a case vide F. I. R. No, 220, dated 14-6-1979. The C.
W. Stated before the learned Judges that he had raided the house of Noor Said in village Mirza Ali Koroona, P. S. Kolu on 14-6-1979 whereas Recovery Memo. Exh. P. C. Shows that Nasib Gal A. S.
1. Had recovered the same licensed gun on 9-2-1979 from Mir Afsar accused/respondent.
12. Similarly, Sherzada Khan, C. W. 3, when examined by the learned Judges, confirmed the statement of Abdul Hamid Khan, C. W. 2 and stated Gun. No, 60734 was transferred to him on an application as reward for conducting a successful raid On the house of Lal Said, Noor Saeed and Saidan Said in village Mirza Koroona, P. S. Kolu Khan on .14-6-1979 while this gun also was recovered by Nasib Gul from Mir Afsar on 9-2-1979 vide the aforementioned Recovery Memo. Exh. P. C.
13. In the light of above discussion we find that the prosecution has miserably failed to corroborate the testimony of the eye-witnesses Zaliir Khan and Ali Sher. Hence, we do not find any merit in any of the three Criminal Petitions Nos. 8, 10 and 16 of 1983 and, therefore, all these three petitions are dismissed.
14. Before parting with this order we would, however, like to observe that a thorough probe be made into the matter regarding the recovery of the aforesaid two guns and their transfer as the so-called reward, in the names of the two above-named Officers which appears to be highly objectionable conduct on the part of such high functionaries to get valuable guns clandestinely and thereby damaging the prosecution case to the extent that the case ended in the acquittal of the two accused/respondents.