1. HAMDODUR REHMAN, C, J.--The first two respondents herein, whir are first cousins, were tried along with four others, all close relations of theirs, for the murder of one Antic Sultan on the 19th of May 1972, at about 7-.30 p.m., when he was passing near the shop of one Abdul Ghafoor (D. W. 1) situated in village Chandakhura, Police Station Kabal, District Swat, by tire Sessions Judge of Swat, who acquitted the others but convicted these respondents under sections 148 and 302/1.49, P. P. C.
2. And sentenced them to one year's rigorous imprisonment on the first count and imprisonment for life on the second count, as also ordered them to deposit Rs. 5,000 fur payment us compensation to the heirs of the deceased under section 544-A, Cr. P. C.
3. On appeal, a Division Bench of the Peshawar High Court has acquitted even these two. The son of the deceased has, therefore, come up for special leave to appeal.
4. The first information report was lodged by the present petitioner (P. W. 4) at 8 p.m. At Kabal Police Station. In this he charged all the six accused by name and gave the details of the respective shots fired by them describing the different kinds of fire-arms used by each, as also mentioned is to which of the shots were effective and which ineffective, The story, as disclosed in this report, is to the effect that, although there was no blood-feud between the parties, they had some dispute over the boundaries of a land known as Khamidara. Each charged the other of having trespassed into its lands. This dispute was actually pending decision before the Tehsildar of Kabal, and according to the custom of Swat, it had f o he resolved upon the oath of the parties on the Holy Qur'an at the spot 1311der the supervision of an official. The parties had appointed Zordast, a tamadar of the Swat Police, to supervise the said oath proceedings, but a aisle had still to be appointed for the taking of the oath, although the last order in that connection had been passed on the 11of March 1972.
5. On the date of the incident, according to the prosecution, the deceased along with his brothers Amir Bashar (P. W. 5) and Amir Hashim (not examined) and his son, the present petitioner (P. W. 4), was, after Maghrib prayer time, proceeding towards the house of one Saiful Maluk, Ex-Masheer, and when they had reached near the shop of Abdul Gh3foor (D. W. 1) the accused, who were waiting in ambush, challenged him to stop. I3e stopped hot at that time the respondent Rawan Khan fired a shot at him and hit him on his back. Then the other respondent fired another shot which also hit him on the back. The other accused also fired one shot each at the deceased, some of which, however, proved ineffective. The deceased fell down dead and the accused escaped.
6. Amir Rawan at once proceeded to the police station and lodged his report. The Investigating Officer (P. W. 7) recorded the F. I. R. And took up the investigation. He arrested all the six accused at 9-30 p.m. Of the having night from the house of respondent Dawa Khan, a furlong away from, the place of the incident. At that time the respondent Rawan Khan was varrying a .303 bore rifle (Exh. P.
7. 5) with a bandolier and Dawa Khan was carrying another .303 bore rifle (Exh. P. 9). Acquitted accused Nadir Khan and Narai were carrying a D. B. Shot-gun each but Inayat Khan arid Manzarai were not carrying any weapon. They were charged in the first information report as being armed with pistols, but they produced shot-guns which, however, were not taken into possession, as they were not connected with the case.
8. Since no empties were recovered, these weapons were not sent for rumination to the Ballistic Expert.
9. The deceased was examined by the Medical Officer, Central Hospital, Sidu Sharif, at 8-45 p.m. Of the same night ; but according to the custom of Rawat, no post-mortem examination could be held, as the relatives of the reused did not consent to it. Four fire-arm entry wounds were found on the deceased which were all 1/4" in diameter. Two of these were on the back of left side of chest, one was on the lateral side of the left chest and on the left log upper 1/3" medial side. Ore of the wounds was found to be freshly bleeding at the time of examination. There was no exit wound, corresponding to the entrance wounds on the chest, but there was an exit round corresponding to the entrance wound on the left leg.
10. The last-named having decamped after examination in the committing Court as a fugitive from justice another murder case, his evidence was transferred to the Sessions Court file under section 33 of the Evidence Act in spite of the objection of the defence.
11. These two witnesses, Saleh Rehman and Kachkol, were not residents of the locality and on their own showing were only chance witnesses, The trial Court, therefore, did not consider it safe to rely on : their testimony. It, however, relied upon the testimony of Amir Bashar and Amir Rawan ; but, since they were closely related to the deceased, it sough for corroboration and found the .Ant only in respect of the two respondents herein from the recovery of two .103 from their possession at the time of them arrest soon after the incident in the how The High Court, on the other hand, took the view that even the recoveries of the weapons from these two respondents were neither proved nor of any value at all. Since Saleh Rehman (P. W 6) was the only non-police witness of the recovery and it had been found that his presence at the spot was doubtful, his evidence could not be relied upon. The testimony of the Investigating Officer alone was not sufficient. It too could not be considered to be reliable, in these circumstances.
12. Furthermore, the evidence of the two witnesses, namely, Amir Rawan (P. W. 4) and Amir Basher (P.
13. W. 5) could not also be relied upon, as they had been contradicted by Abdul Ghafoor, the shop- keeper, in front of whose house the incident had taken place.
14. This witness appeared---as a defence witness aid deposed to the effect that the deceased was alone at the time. He came out on hearing the guts-shot and found the deceased still alive. Theth latter told him that he had not been able to identify the assailants. The Court also found from the evidence that the probability was that the assailants had fired from behind a bush and were, therefore, not seen by anybody. The High Court doubted the presence of even these two witnesses.
15. Learned counsel appearing in support of this petition lower, con--tends that the recoveries of the weapons and the arrest of the accused from a place within one furlong of the place of the incident was a strong corroborating circumstance and its rejection "lad caused a grave of justice.
16. The arrest from the house of the respondent Dawa Khan, which is within a furlong of the place of the incident, cannot by itself establish the guilt of the accused. The presence of the accused persons in the house of) Dawa Khan, a near relation, was not by itself an unusual or a suspicious circumstance from which such an inference could be drawn. The possession of fire-arms at that time is also not an unusual circumstance in this part of 14 the country where everyone carries arms.
17. The mere fact that the injuries on the deceased on medical examination appeared to be injuries caused by bullets, does trot necessarily connect the rifles recovered from them with the injuries.
18. This petition is accordingly dismissed.