Law:

Section:

Penal Code (XLV of 1860), S. 302-Murder-Benefit of doubt-­Shot guns' 6f accused taken into possession by police-Fire-arm Expert's report disclosing, however, that none of recovered empties fired from any of guns-High Court, in circumstance, held, right it giving benefit of doubt to accused. Khan Sher Bahadur Khan, Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate-on-Record for Petitioner. Malik Maqbul Elahi, Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Advocate-on-Record for Respondents Nos. 1 and 2. Fakhre Alain, Advocate-General, N.-W. F. P., Peshawar for the States. Date of hearing : 13th April 1972. ORDER 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 convic­tion 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. The prosecution case is that Aftab Gul and Zahir Gul sons of Jan Muhammad, the present respondents, along with Khush­rang, 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 con­victions and sentences and during the pendency of the writ petition they were released on bail. 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. Early in the morning on the 24th…

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