Law:

Section:

(a) Penal Code (XLV of 1860)-------------S. 302-Recovery of crime weapon-Mere fact that prosecution did not explain circumstances in which pistol was produced or recovered-Would not negative use of pistol in occurrence. (b) Penal Code (XLV of 1860)---- ---S. 302-Sentence-Fact that accused acquitted by trial Court but acquittal reversed by High Court 21. years later coupled with fact that prosecution had roped in his three other brothers one of whom died and two others had been acquitted-Sentence of death, in circumstances, commuted to that of transportation for life. Mian Mahmood Ali Qasuri, Senior Advocate Supreme Court (S. Masoom Shah, Advocate Supreme Court with him) instructed by Muhammad Nazar Khan, Senior Attorney for Appellants. Fakhr-e-A lam, Additional Advocate-General (Maqbool Ilahi Malik, Advocate Supreme Court with him) instructed by S. Safdar Hussain, Attorney for Ijaz Ali, Government Attorney on record for the State. Dates of hearing : 29th and 30th October 1968. JUDGMENT SAJJAD AHMAD, J.-This is an appeal as of right by Khadeen, Khan Nawaz and Shafeen, who are real brothers and who along with their fourth brother Shah Alam, were tried by the Additional Sessions Judge, Bannu, on charges of committing, in furtherance of their common intention, the murder of Mir Haider Shah (section 302/34, P. P. C.) and for attempting the murder of P. W. Bazi Gul section 307/34, P. P. C.) and in causing injuries with sharp weapons to P. Ws. Muhammad Nawaz and Umar Khan section 324/34 P. P. C.). They were acquitted by the learned Trial Judge but on a State appeal under section 417 of the Criminal Procedure Code, a Division Bench of the High Court at Peshawar reversed their acquittal and convicted them on the charges of murder and attempted murder. Shah Alam had died in the meanwhile and, therefore, no sentence was passed against him, but each of the three appellants was sentenced to death on the murder charge and 7 years' R. I., for the offence under section 307/34, P. P. C. It may be mentioned here that the State appeal was filed after a revision petition against the acquittal order, lodged by Amil Shah, a son of the deceased Mir Haider Shah had been admitted by a…

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