1. ANWARUL HAQ, C. J.--The petitioner seeks leave to appeal against the judgment of the Peshawar High Court dated 25-3-1976 whereby the conviction and sentence of death recorded against the respondent Rokhan by the trial Court were set aside, and he arias acquitted.
2. The prosecution story briefly stated is that on 26-6-1973 at about 2-30 p.m. The deceased Said Akbar was returning to his house after attending to his duty. When he reached near the house of one Masan, in village Ragi within the jurisdiction of Police Station Muthra, he was fired upon three times by the respondent Rokhan, and his brother Shuja, who is still absconding. Shuja (abeconder is alleged to have fired two shots whereas Rokhan is attri--buted one gunshot).
3. No recoveries connecting the respondents with the above incident were effected either at the spot or elsewhere from the respondent or his ca-accused.
4. According to the complainant, the motive for this occurrence was that: about a month earlier the circumcision of his grand son, who is also the grand son (daughter's son) of the absconder Shuja, was performed at the complainant's house against the wishes of the former. This Act annoyed Shuje, accused who then together with his brother Rokhan respondent is alleged to have committed the murder of Said Khan, the other son of the complainant.
5. The F.I. R. Was lodged at 5-30 p.m. Of Police Station, Muthra, which is at a distance of 12 miles from the place of occurrence, by. Muhammad Umar father of the deceased.
6. The complainant Muhammad Umar who had not himself witnessed the occurrence was informed about it by his daughter Mst. Tajrian (P. W. 16), that; Said Khan had been killed by the respondent Shuja and Rokhan both of whom happened to be the nephews of the complainant. According to Mst. Tajrian, she was sewing clothe in her house when she heardtwo shots whereupon she went out. Sue sage that her brother was lying dead and her husband Gut Zaiican (P. W. 11) and her sister's husband Banat (P. W. 12) were present near the dead body. She was told by Gut Zaman that the respondent Rokhan and his brother Shuja hid killed her brother.
7. The respondent denied any participation in the occurrence and pleaded false implication. The prosecution examined only two parents as the eye-witnesses of the occurrence namely, Banat (P.
8. W. 12) and Gul Zaman (P. W. 11). The learned trial Judge believed this evidence but the High Court has reversed these findings on the view that Banat's name was not mentioned in the F. I. R. And that the account of the incident given by Gul Zaman was to conflict with the medical evidence. Mr. Agha Khan, Baba Khan, the learned counsel for the petitioner, contends that the omission to mention the name of Banat in the F. I. R. Was easily explained by the fact that the complainant, who was an old man of 70 years age and had not himself witnessed the occurrence, could not be expected to remember all the details narrated to him by his daughter Mat. Tajrian (P. W. 10). He submits that, even otherwise the omission to name an eye-witness in the F. I. R. Is not fatal in the peculiar circumstances of this case. Ho further argues that the evidence of Gul Zaman P. W. Has been wrongly held to be in conflict with the medical evidence.
9. After examining the available record, we find that there contentions are not tenable. The learned Judges of the High Court, have discarded the testimony of Banat P. W. Not merely on the ground that his name had been omitted in the F. I. R. But also because it was substantially contradicted not only by the testimony of Gul Zaman P. W. But also by the medical evidence. According to the testimony of this witness, the deceased was shot at while he was still on his cycle, and the respondents were sitting on a, wall at some distance 1 whereas according to Gut Zaman the deceased was shot at after be had got off his cycle and while in standing position. More--over, according to him, the respondents were also standing. Now, these statements are not only in conflict with each other, but also with tae medical evidence, according to which the direction of injuries Nos. 1 and 2 indicated that they were caused by a shot tired from up-downward and the injuries Noa. 1, 2 and 3 showed charring marks, thus indicating that these were caused from a very close a range. It therefore appears probable that the two witnesses had not seen the incident. The omission of Banat's name from the F.I.R. Also assumes significance when we find that Gut Zaman was present throughout with the first informant at the time the F. I. R. Wee, being recorded.
10. In these circumstances, we find it difficult to held that the High Court has not acted on correct principles in giving benefit of doubt to the respondent. We would accordingly dismiss the petition.