TEHMASH vs AFTAB GUL AND 2 Other
This petition for leave to appeal was filed by the son of the deceased against a judgment of the Peshawar High Court, which set aside the conviction and sentences of death and transportation for life awarded to the respondents under Sections 302/34 of the Pakistan Penal Code 1860. The prosecution alleged that the respondents shot the deceased in broad daylight in the presence of police officials and eyewitnesses, following which they were apprehended with their shotguns and four empty cartridges were recovered from the scene. The core legal question was whether the High Court's acquittal of the respondents was perverse or unreasonable so as to justify interference by the Supreme Court. The Supreme Court held that the Fire-arm Expert's report, establishing that none of the recovered empty cartridges were fired from the seized shotguns, constituted an inherent weakness going to the root of the prosecution case. The High Court was fully justified in granting the benefit of doubt to the respondents, and as the judgment was neither perverse nor unreasonable, no interference was warranted. The petition was dismissed.
- Does a contradiction between ballistic evidence and eyewitness accounts regarding recovered cartridges constitute a fatal weakness justifying the grant of benefit of doubt to the accused?
- Whether the Supreme Court will interfere with a High Court judgment of acquittal that is neither perverse nor unreasonable?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. WAHEBDUDDIN AHMAD, J.-Respondents Aftab Gul and Zahir Gul were tried for the murder of Abdul Khaliq under section 302/34, P. P. C. By the Additional Sessions Judge, Peshawar. The learned Additional Sessions Judge convicted both the persons and sentenced Aftab Gul to death and Zahir Gul to transportation for life. The respondents challenged their convic--petition in Criminal Appeal No. 33 of 1971 and a Division Bench of the Peshawar High Court, by judgment dated the 16th September 1971, accepted the, appeal of the respondents and set aside their conviction. The petitioner who is the son of the deceased seeks permission to file an appeal against the said judgment.
2. The prosecution case is that Aftab Gul and Zahir Gul sons of Jan Muhammad, the present respondents, along with Khush--rang, Aurang and Sher Afzal were charged for the murder of Abdul Khaliq, Yaqub, Abdul Malik sons of Faqir and Rustam son of Umara, residents of village Tehkal Payan, on the 17th April 1960, in their village. They were tried under the F, C. R. They were sentenced to 32 years' R. I. Each. They filed a writ petition in the High Court challenging the validity of their con- -victions and sentences and during the pendency of the writ petition they were released on bail.
3. Their writ petition was dismissed on the 23rd December 1969. On the 20th February 1970, warrants for their arrest were issued from the Court of District. Magistrate but before these warrants could be executed the present occurrence took place on the 24th April 1970.
4. Early in the morning on the 24th April 1970, Juma Khan P. W. 7, a cousin of Yaqub, Abdul Malik etc., deceased, mentioned above, learnt that Aftab Gul and Zahir Gul sons of Jan Muhammad respondents had come to their village and were cutting wheat crop in their field in a Wand Nullah.
5. Juma Khan informed Abdul Khaliq son of Abdul Munaf deceased in this case and made him sit near the field where the two accused were cutting wheat, for keeping a secret watch on them. He himself went to Police Station, Tehkal and informed Mahmood Khan S. I. At 10 a.m. Of the presence of the accused in their field. Mahmood Khan and Juma Khan came to Police Post, Peshawar University and from there took Alam Khan Head-Constable P: W. 9, Fazal Khaliq F. C., Badshah Gul F.C., Izzat Khan F. C. And Zahir Shah F. C. Along with them. The party proceeded from there to the Peshawar-Jamrud main road. They boarded a truck and reached Wasrak Road. On reaching a place known as Kababian on the Warsak Road, the party divided itself into two: one headed by Mahmood Khan S. I., P. W. 12 and the other by Alam Khan, H. C., P. W.
9. From there they started towards the place where the two respondents were present. When the two parties came close to the two respondents, the deceased Abdul Khaliq also came out from the place where he was hiding. The two respondents who were armed with shot guns on seeing the police and the deceased, rushed at the deceased. Aftab Gul and Zahir Gul fired a shot each at the deceased but they missed him. Aftab Gal then fired another shot which again missed him. He fired another shot with which Abdul Khaliq was hit on his face and fell down dead. The Police personnel by this time had come near the two respondents and arrested them along with their fire--arms. Juma Khan P.
6. W. 7 then lodged the report, Exh. PA/1, with Mahmood Khan S. I., P. W. 12.
7. The prosecution case is : supported by the doctor P. W. 1, Faqir Muhammad P. W. 2, Tehmash P. W. 3, Gul Roz P. W. 4, Gharibullah A. S. I. P. W. 5, Ismail P. W. 6, Juma Khan P. W. 7, Inzar Gul P. W. 8, Alam Khan P. W. 9, Zahir Shah P. W. 10, Muhammad Sher Inspector P. W. 11 and Mahmood Khan S. I: P. W. 12.
8. The learned Judges of the High Court have reviewed the entire evidence and have come to the conclusion that there are some inherent weaknesses in the case which the Assistant Advocate- General was unable to explain. Before us also Mr. Fakhre-Alam, learned Advocate-General has conceded that the State does not support the case of the petitioner.
9. One of the inherent weaknesses is that the occurrence took place in a broad-day light. The respondents were surrounded by six Police officials and Juma Khan. These seven persons allegedly saw the two respondents firing four shots in all and all the four empties were recovered from the spot. The two shotguns of the respondents were also taken into possession there and then. It is strange that none of the four empties bad been fired from the two shotguns, according to the report of the Fire-arm Expert. In our opinion; this inherent weakness in the prosecution goes to the root of the case and the learned Judges of the High Court were perfectly justified in giving benefit of doubt to the two respondents. There are some other features in the case also which show that the High Court was perfectly justified in accept--ing the appeal of the respondents. We are satisfied that the judgment of .The High Court is not perverse or unreasonable and it calls for no interference. The petition is dismissed.