1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the Peshawar High Court in Criminal Appeal No. 52 of 1970 (Murder Reference No. 24 of 1970), dated the 26th October 1970. By this judgment, a Division Bench of the Peshawar High Court upheld the conviction of the appellant and dismissed his appeal. His death sentence was confirmed.
2. Jehangir Khan appellant was tried by the learned Additional Sessions Judge, Peshawar, under section 302, P. P. C. For the double murder of Mehr Shah and Qadim Shah and was also tried under section 307, P. P, C. For the attempted murder of Barkat Shah, Umar Shah and Muhammad Shah, by firing at them on the 27th September 1969, in village Utmanzai, Tehsil Charsadda. The learned Additional Sessions Judge, Peshawar, convicted the appellant on the 13th March 1970, for the murder of Mehr Shah and Qadim Shah and sentenced him to death. He acquitted the, appellant for the charge under section 307, P. P. C. The appel--lant filed an appeal against this judgment but it was dismissed. He has challenged the judgment of the High Court in this appeal before us.
3. Special leave was granted in this case to examine the evidence in order to find out whether it has been assessed in accordance with the principles applicable to the safe dispensation of justice.
4. The prosecution case is that Mehr Shah and Qadim Shah deceased, on the 27th September 1969, were to attend the Court of Assistant Commissioner, Charsadda, in connection with a case under section 110, Cr. P. C. The two deceased and Barkat Shah P. W. Started from their house to go to the Court and came to Bazar Utmanzai where at about 9 a.m. They were met by Jehangir Khan appellant armed with a Tamacha and Abdul Wahid, co-accused, now dead, armed with a Topak.
5. These two persons asked the deceased that they were wanted by Nawab Shah, Nawaz Khan and that they should go with them to the Hujra. The deceased party and the accused and Abdul Wahid started towards the Hujra. When they reached near the Hujra towards the Bazar, Jehangir Khan appellant and Abdul Wahid co-accused fired simultaneously with their pistol and Topak respectively, with which Mehr Shah and Qadim Shah were hit and died on the spot. Barkat Shah P.
6. W. Was also alleged to have been fired but he escaped. P. W. 3 Umar Shah is stated to have been present at the spot and has witnessed the occurrence in addition to several other persons. The motive is stated to be that the deceased Mehr Shah and Qadim Shah were dealers in charas and opium and the appellant and his co-accused Abdul Wahid, who died soon after the occurrence in the judicial lock-up, used to take charas and opium from them. It is alleged that the deceased refused to give any more charas and opium and for that reason they were put to death. At the trial this version was changed and it was alleged that Taimoos Khan, a brother of Jehangir Khan, appellant, was addicted to smoking charas and taking opium. Jehangir Khan was annoyed with the two deceased persons and suspected that they were instrumental in making his brother an addict of charas and opium.
7. The prosecution case is based on the oral testimony of Barkat Shah P. W. 2, brother and Umar Shah P. W. 3, nephew of the two deceased.
8. The learned counsel for the appellant, has contended that the learned Additional Sessions Judge, has formed the opinion that Mukammil Shah P. W. 4 was not present at the spot and in coming to this conclusion he was influenced by the facts that his name was not mentioned in the F. I. R. He, however, believed that P. Ws. Barkat Shah and Umar Shah were present at the spot and they did witness the occurrence and based the conviction of the appellant on the statements of these two witnesses.
9. Mr. S. M. Zafar, learned counsel for the appellant, has con--tended that the evidence at the trial differed from the case sought to be made out at the initial stage in the First Information Report lodged by an eye-witness in at least two particulars. While originally it was stated that both the appellant and his co-accused who were armed with a revolver and a rifle respectively shot dead the two deceased brothers. The informant, P. W. Barkat Shah, as well as the other eye-witness Umar Shah stated that it was appellant Jehangir Khan who killed both the deceased brothers. He further contended that in the same way the motive alleged in the F. I. R. That the two deceased brothers sold opium and charas and they refused to be forced to sell them to the appellant and the co- accused has been changed and in the evidence of P. W. 2 Barkat Shah, it is stated that the two deceased brothers were dealers in fuel wood and the appellant Jehangir Khan suspected that the deceased were responsible for making his brother, an opium and charas addict. He further contended that according to the Ballistic Expert, the two empties of '30 bore revolver, recovered from the possession of the father of the appellant, have not matched and the medical evidence does not support the prosecution case that the deceased were killed with revolver shot.
10. The contentions of the learned counsel are not without force. The reading of the evidence of Barkat Shah and Umar Shah shows that after the death of Abdul Wahid they concentrated in their evidence against appellant Jehangir Khan. It was stated in the F. I. R. That both the appellant and co-accused who were armed with a revolver and rifle respectively shot dead the two brothers. At the trial, the informant, P. W. Barkat Shah as well as other eye-witnesses stated that it was appellant Jehangir Khan alone who killed the two deceased brothers. No reliance can be placed on such evidence. In view of this inconsistency in the two statements there is much force in the contention of the learned counsel for the appellant that these two witnesses were chance witnesses and were not present at the scene of occurrence. The medical evidence also contradicts the ocular testimony materially. The entrance wound on both the deceased is 1/6" x 1/6" and exit wound -- " x --". This wound has been rightly pointed out cannot be the result of the bullet injury.
11. Further the ocular testimony described the firing distance by the deceased as almost point blank range. There is no charring on any of the injuries. In our opinion, the evidence discloses that injuries were caused from a close quarter and as such there should have been charring near the injuries.
12. After careful consideration of the evidence of the prosecution, we are satisfied that much reliance cannot be placed on it. We would, therefore, give benefit of doubt to the appellant and acquit him.
13. A short order has already been announced in this connection.