' Through the instant Criminal Revision, Zar Badshah complainant has challenged the judgment, dated 28-8-1993 of the learned Sessions Judge, Kohat, whereby he acquitted Samiullah alias Samu accused-respondent No,1 in case F.I.R. No,187, dated 25-2-1990 under section 302/34, P. P.0 , Police Station, Saddar Kohat.
2. Brief facts of the prosecution case are that on 25-2-1990 Zar Badshah complainant reported the matter to the police to the effect that at the time of occurrence he was present in the High School Dhoda whereas his deceased brother Khan Badshah was sitting outside the said school. On hearing the report of fire shots he rushed outside the school and saw Nisar son of Abdul Hakeem and Samu son of Haji Ahmad Yar firing at his brother Khan Badshah, with which he was hit and died on the spot and the accused decamped from the scene of occurrence. The occurrence was allegedly witnessed by Abdul Samad, Liaq Shah and Waheedullah. The motive was stated to be a dispute over the electricity poles which was later on compromised.
3. After the necessary investigation of the case, challan was submitted in the Court of Illaqa Magistrate, Kohat, who later sent the case for trial before the Sessions Court.
4. After complying with the provisions of section 265-C, Cr.P.C. The accused was charged under section 302/34, P.P.C. For the murder of Khan Badshah deceased to which he pleaded not guilty and claimed trial.
5. In order to prove its case the prosecution examined Asal Khan S.H.O. (P.W.1), Shad Muhammad (P.W.2), Shah Jehan H.C. (P.W.3), Anwar Din H.C. (P.W.4), Hazrat Rehman H.C. (P.W.5), Munir Khan (P.W.6), Zarbadshah (P.W.7), Liaq Shah (P.W.8), Waheedullah (P.W.9), Malik Muhammad Yousaf (P.W.10), Mir Sayed, Inspector (P.W.11), Hukam Jan, A.S.-I. (P.W.12), Sarwar Jan H.C. (P.W.13), Ghulam Jan, A.S.-I. (P.W.14) and Dr. Gulab Zarin (P.W.15) and abandoned the remaining P.Ws. Being unnecessary.
6. The ocular account of the prosecution version was furnished by Zar Badshah complainant (P.W.7), Liaq Shah (P.W.8) and Waheedullah (P.W.9). The former has reiterated the version given by him in the F.I.R. While the later two supported him. The other witnesses are more or less of formal nature and their version is fully discussed in the judgment of the trial Court and need not be repeated here. The accused was examined under section 342, Cr.P.C. Who, denied the allegations made against him in the prosecution evidence. However, he did not wish to be examined under section 340(2), Cr.P.C. Nor liked to produce defence evidence. The learned trial Judge on the appraisal of the evidence so produced in the case, extended the benefit of doubt to the accused- respondent and acquitted him of the charges.
7. This revision was filed when application of the complainant before the Provincial Government to file appeal against acquittal was pending before District Magistrate, Kohat. On 4-4-1994, when the revision was heard in motion, learned counsel for the petitioner informed the Court that the said application has been rejected. The revision petition was admitted to hearing for reappraisal of the prosecution evidence.
8. I have heard the learned counsel for the parties and gone through the evidence on the record with their assistance.
9. Learned counsel for the petitioner with reference to the statements of Zarbadshah (P.W.7), Liaq Shah (P.W.8) and Waheedullah (P.W.9) argued that they had no or animus against the accused- respondent to falsely involve him in the case. He contended that medical evidence is in line with the prosecution version which is corroborated by the unexplained ascendance of the accused.
10. On the other hand, learned counsel for the respondent while defending the acquittal order submitted that prosecution case is replete with doubts and thus, trial Court has rightly extended the benefit of doubt to the respondent.
11. Learned counsel for the State also supported the acquittal order stating that the same is based on the correct appreciation of evidence and, as such, warrants no interference.
12. Learned trial Court has discussed the eye-witness account in the following manner:- "Zar Bad Shah (P.W.7) in his Court statement stated that on the day of occurrence at 9-30 or 9-45 a.m. He was present inside the school of village Dhoda Sharif. Khan Bad Shah deceased was sitting on the road side. After a while he heard report of fire shots, came out of the school and saw accused facing trial and absconding co-accused, namely, Nisar firing at the deceased, with their pistols. According to him Khan Badshah was hit with their fire-shots and the accused decamped.
Exh.P.B. Is the site plan prepared by the Investigating Officer at the potation of the complainant. At point No,1 Khan Badshah is shown. At this point he received fire shot injuries and fell down at point 1(A). The distance between point No,1 and point 1(A) is 7 paces. At point No,2 absconding co- accused is shown, while point No,3 is given to accused facing trial. At points 4, 5, 6, 7 Zar Badshah, Liaq Shah, Waheedullah and Abdul Samad are shown, while from point 'B' an empty of .30 bore was recovered by the Investigating Officer. According to complainant he took the dead body of the deceased in a Datsun Pickup to the Police Station where he lodged report Exh.P.A. Under cross- examination Zar Bad Shah stated that Maweez Khan is his maternal-uncle. He is always contesting election of local bodies. Haji Ahmad Yar Khan was contesting election and Maweez Khan was supporting him. He also stated that he cannot say whether dispute over the pole was earlier or later the said election, this witness is contradicted by Laiq Shah (P.W.8) who under cross- examination stated as under:-- 'Maweez Khan and Ahmad Yar Khan did contest election. Maweez Khan was elected, while Ahmad Yar was defeated'.
' Dr. Gulab Zarin (P.W.15) conducted post-mortem examination on the dead body of the deceased.
He found five entry wounds on the person of the deceased and four exit wounds. Zar Badshah stated that if a person is standing inside the school, the spot is not visible, and the spot is 22/23 paces from the school. According to him, after hearing 3/4 fire-shots he came out from the school, he was sitting in a grassy ground adjacent to the school gate. He admitted that one Chowkidar was present and no other person was present inside the school.
' However, this Chowkidar, who is independent and disinterested person, was not produced by the prosecution to prove the presence of Zarbadshah at the spot. According to Zarbadshah, while he was inside the school he heard report of 3/4 shots and when he came out the remaining shots were fired by the accused, while the report of doctor is not supporting his version. Zar Badshah stated that only Shah Muhammad accompanied him to the police station. He also admitted that his one hand was bismeard with blood, and he had shown the said blood to the Investigating Officer. There is nothing on record to suggest that he had shown bismeard hand to the Investigating Officer. He admitted that one Patel of his village had dispute with one Fateh Sher. He also admitted that house of Fateh Sher was buggered for which deceased was charged along with brother of Dr. Alam. According to him, when Investigating Officer reached the spot people of the locality were not present there, while Investigating Officer contradicted him on this point.
' Liaq Shah deposed that he was student of 8th Class On the day of occurrence he appeared in the Middle Examination. At about 10-00 a.m. He came out from Examination Hall for pissing. At that time Khan Badshah was sitting on the road towards the Ice Factory. Nisar and Samu came from Ice Factory, started firing at Khan Badshah, with which he was hit and fell down. Then he entered the examination hall for completing paper. He admitted that he was examined by the police under section 161, Cr.P.C. Exh.P.D./1 is police statement of this witness. He was confronted with his said statement. Liaq Shah stated that he did mention in his police statement that both accused started firing, with which deceased was hit having his legs towards, from front side. On the other hand firing from front side not mentioned. According to him, he has not stated before the Investigating Officer that Nisar came near the deceased and fired at him from the close range. While in his police statement he had stated so. He voluntarily stated that Nisar fired at the deceased from the distance of 4/5 paces. In his police statement this witness had stated that both the accused appeared from Ice Factory side. Khan Badshah was sitting on the road side. Nisar fired at him, with which he was hit and fell down to the other corner of the road. Then Samu fired at him, with which he was hit and died. Later on he entered the hall and gave paper. In his Court statement he has not mentioned that first volley of shots was fired by Nisar followed by Samiullah, meaning thereby that this witness has made improvements in his Court statement. It is also in his statement that when he came out at 10-00 a.m. He heard the report of fire-shots, while complainant stated that he heard the report of fire-shots at 9-30/9-45 a.m. He admitted that he did not go to the spot on account of firing and entered the Hall. He contradicted complainant and stated that deceased had no enmity regarding theft with any person. He further stated as under:-- ' Sarwar Khan of Masam Khan Banda had not charged the deceased for theft'.
' He also stated as under:- ' Patel and Fateh Sher had not charged the deceased for theft'.
' This witness has not shown the place where he urinated after coming out from the Examination Hall. Asal Khan P.W. I his cross- examination admitted that on the day of occurrence Liaq Shah (P.W.8) appeared in Board Examination, and he verified from the staff of Examination Hall that Liaq Shah gave paper on the said date. Although this witness was present in examination hall, but in my opinion, keeping in view his divergent and contradictory statements, he had not witnessed the occurrence and has not come to the Court with clean hands.
' Waheedullah son of Khan Badshah stated that on the day of occurrence he had gone to School for helping Liaq Shah who was appearing in a paper. Khan Badshah was sitting on road side towards the Ice Factory. At about 10-00 a.m. Liaq Shah came out from the Hall, called him. In the meanwhile accused facing trial and absconding co-accused appeared from the side of Ice Factory having Temachas in their hands. According to him, first of all Nisar fired. Deceased retracted and fell down and then Samiullah also fired at him. Zar Badshah and Liaq Shah have not stated that first of all Nisar fired followed by the firing of Samiullah. According to Waheedullah, he did not go near to his father, but went to his house for informing the inmates. It is nowhere mentioned in his statement that Zar Badshah and Liaq Shah had also witnessed the occurrence.
This witness was also confronted with his police statement recorded under section 161, Cr.P.C. Copy Exh.P.W. 1/D-2. He stated that it is incorrectly recorded in his police statement that he came to the school for helping Liaq Shah in solving paper. He admitted that other persons/friends of the students had come to the school premises for moral support for their friends, but none of them was examined by the prosecution to support/corroborate the tainted statements of interested and partisan witnesses. Occurrence took place on main road, but no independent and disinterested witness was examined to corroborate the statements of Zar Badshah, Liaq Shah and Wahidullah, who are admittedly hostile, partisan and interested persons, in my humble opinion the presence of the said witnesses at the spot is not proved beyond reasonable doubt. There are material contradictions, omissions, additions and improvements in their statements."
The above analysis of evidence by the trial Court appears to be reasonable and fair as it seems to be based on correct appreciation of evidence, as such, the impugned judgment cannot be said to be preserve or fanciful. It has been repeatedly laid down by the apex Court of the country in PLD 1959 SC 258, PLD 1960 SC 286, PLD 1964 SC 26, 422, 795 and PLD 1966 SC 424 that unless it is demonstrated with certainty that none of the grounds of acquittal are supportable, the Superior Courts will not interfere only because of different view could be taken by the Superior Courts if it was trying the case. When the view taken by the trial Court is reasonably possible, simply that an alternative view might have been taken does not justify the setting aside of acquittal order.
' In view of the a fore quoted case-law on the subject and in absence of reliable corroborative evidence, I am of the opinion that in such a case retrial should not be ordered. It seems to me that retrial in all probability would be a C repetition of the same exercise of the trial with no better result.
Consequently this revision petition is dismissed.