NAIMUDDIN, J.--Both the abovementioned petitions are for leave to appeal from the judgment of Peshawar High Court, Peshawar dated 6-2-1989 passed in Criminal Appeal No. 142 of 1987. The appeal was filed by Tariq Shah, the respondent, against his conviction under section 302, P.P.C. And sentence of death and fine of Rs.10,000, out of which Rs.5,000 was ordered to be paid to the legal heirs of the deceased as compensation and in the case of default in payment of fine he was further to undergo R.I. For 5 years.
2. The High Court while accepting the appeal set aside the conviction of the respondent passed by the trial Court and acquitted him. It may be stated that the respondent was tried alongwith Samiullah Shah and Irfan Shah, the co--accused. The trial Court, while convicting the respondent, gave benefit of doubt to the said co-accused and acquitted them. A revision was filed against their acquittal, but the same was dismissed by the High Court by the impugned judgment.
3. The relevant facts briefly stated are that Shah Ayaz was murdered on 27-10-1985 at 10.00 a.m. In the premises of Government Degree College, Kohat. A report was lodged by Syed Mudassar Hussain, P.W. 5, a student of the same College, at 10.20 a.m. On the same day. Giving details of the incident ha stated as follows: "Samiullah Shah alias Sami, student of 1st Year alongwith others who were not college students and one of them had a beard, were also sitting in the Canteen. Shah Ayas said to Samiullah Shah why have you brought people from outside in pursuit of my friend Mazhar Taqi. You look within yourself .
Samiullah Shah in reply said "You see within yourself." Upon this the two companions of Samiullah Shah got up and said "come out of the Canteen and we shall see outside". In the meantime some more students intervened and we got hold of Shah Ayaz. Samiullah Shah and his two companions went out. Shah Ayaz released himself from us. As soon as he went out, the two companions of Samiullah Shah fired at Shah Ayaz with pistol which hit him and he fell down. The two accused companions of Samiullah Shah made good their escape on a motorcycle whereas Samiullah Shah also ran away from the spot. I alongwith Muhammad Nur student came near Shah Ayaz. He had expired. I have brought the dead body of Shah Ayaz for report on a Suzuki. I know the two companions of Samiullah Shah by face. I lodge complaint of murder of Shah Ayaz against Samiullah Shah and his two companions/accused:' .
4. The prosecution produced three college students as eye-witnesses, namely, Syed Mudassar Hussain, P.W. 5, Muhammad Nur, P.W. 6, and Ijaz Ahmed, P.W.
7. The trial Court, however, did not rely on the .Evidence of Mudassar Hussain Shah and Muhammad Nur but relied on the evidence of Ijaz Ahmed in convicting the respondent and giving benefit of doubt in acquitting the other two co- accused. The trial Court also relied on the recovery of pistol, Exh. P.8, with its licence copy, Exh. P.9, three matching empties of .30 bore, Exh. P.1, two pieces of lead and blood stained earth from the spot. And a motorcycle was also recovered from him. But, High Court, in view of. Some material contradiction/variation in the statements of Ijaz Ahmed, P.W.7, and Sher Dil Khan, Inspector, CIA, who was the investigating Officer in the case, acquitted him. It was also held that Ijaz Ahmed was a distant relation of the deceased. Another reason which weighed with the High Court was that the report of the Fire-arm Expert, Exh. PF/1, was silent as to when the incriminating articles were received and when they were examined.
5. In support of the petition, learned Advocate-General of the Province and Mr. Mujib-ur-Rehman argued that the High Court has unduly given the benefit of doubt to the respondent as evidence of P.W. 7 was reliable and mere distant relationship with the deceased was not of much consequence when the same was supported by recoveries of the pistol and the matching empties and the blood--stained earth. The question, therefore, for consideration, inter alia, is whether the appraisal of evidence done by the High Court in the present case can be said to be in accordance with the principles laid down by this Court for appraisal of evidence for safe administration of justice in criminal cases.
We, therefore, grant leave in both the cases. Bailable warrants will be issued against the respondent in the sum of Rs.25,000 with P.R. Bond and one surety in the like amount to the satisfaction of the Additional Sessions Judge, Kohat.