' MUHAMMAD HALEEM, J.-This order will govern P. S. L. A. No, 29-P of 1979 and Cr. Petition No, 32-P of 1979: the former is by Azim Gul, the son of Khan Gul and the brother of Rabib Gul, the two deceased in the case, assailing the acquittal of Walibat Khan and Pio Khan while the latter is by Gulbat challenging his conviction and death sentence for the murders of the two deceased and attempted murder of Azim Gul.
' It was alleged by the prosecution that Toti Rehman, a brother of Gulbat, was murdered at Hyderabad about five years prior to the occurrence in which case Arab Gul and his son Mirab Gul, Tarboors of Azim Gul, were tried for his murder but were acquitted. This was the alleged blood-feud which led to the murders of Khan Gul and Rabib Gul at 0600 hours on 23rd June, 1977 in the area of villange Kundi. At the stated time, the two deceased Khan Gul and Rabib Gul, Azim Gul and his Torboors, Arab Gul and Wazir Khan, were proceeding to their land which was about five furlongs from their houses in village Kundi ; and no sooner they reached the 'Band Algada', they saw the petitioner, Walibat Khan and Pio Khan armed with Topaks emerging from the nearby reeds and from amongst them Walibat Khan fired a shot which struck Khan Gul who fell down and died.
Gulbat Khan and Pio Khan next fired at Rabib Gul killing him at the spot. All the three then fired a shot at Azim Gul who sustained injuries and fell down. Thereafter they again fired two or three shots at the complainant party and then decamped from there. Malik Shah Madar, Sarbarah Lambardar of the village on hearing the shots repaired to the wardat to whom Arab Gul and Wazir Khan disclosed the names of the assailants. Thereafter, the two deceased and Arab Gul were taken on cots to their village. Mina Gul, the village chowkidar was then deputed to lodge the report at Police Station, Gurguri and on reaching there he was not able to contact the S. H.
0. Or A. S. I. As he was told by the Muharrir to go to village Dalian where they had gone to investigate some case. He was able to contact Muhammad Sharif Khan, S. H.
0. In village Dalian at. 1400 hours but his statement was not recorded and instead he alongwith Zardad Khan, A. S.
1. Went to the house of Azim Gul and on reaching there at 1600 hours, he recorded the statement of Azim Gul which was treated as an F. I. R. In the case. From the spot he secured blood-stained earth from different places, five crime empties, seven pellets and one card board disc. At 7-00 p. m. On 23rd June, 1977 Muhammad Sharif Khan, S. H.
0. And the A. S.I. Alongwith the police party raided the house of Pio Khan situate in village Bakha Banda from where they arrested the petitioner, the acquitted accused and one Haibat Khan, a proclaimed offender. From the possession of Gulbat Khan a -303 rifle and 13 live and 7 empty shells were taken into possession. From Haibat Khan also an unlicensed -303 rifle and 11 live bullets were seized. The five crime empties were sent to the Ballistic Expert for opinion by the High Court and according to his opinion all of them were fired by one weapon.
' The trial Court believed the evidence of Azim Gul, Arab Gul and Wazir Khan in regard to the ocular version of the incident. Further, the trial Court held this evidence to be duly corroborated by that of Malik Shah Madar to whom the names of the culprits were disclosed soon after the occurrence.
Accordingly, the trial Court convicted the petitioner and the other two acquitted accused on charges of murder on two counts and for attempted murder under sections 302 and 307 read with section 34, P. P. C. The petitioner was, however, sentenced to death on the first named counts and ordered to pay Rs, 10,000 or in default to suffer six months R.I. The other two were awarded imprisonment for life on the said counts as they were of tender age. On the second count all of them were sentenced to 10 years' R. I. And the petitioner was further ordered to pay a fine of Rs, 5,000 or in default to suffer R. I. For six months. Azim Gul filed a revision seeking enhancement of sentence of the acquitted accused while the petitioner appealed against his conviction and sentence. The trial Court also made a reference for the confirmation of the death sentence.
' The High Court in its ultimate analysis of the evidence held that only six shots were fired out of which the crime empty of one was not discarded ; and that all the shots were fired from the same weapon. Again on a consideration of the evidence of Azim Gul, Malik Shah Madar, Mina Gul and the S. H.
0. The High Court held that there was delay in the lodging of the F. I. R. Which could not be "explicitly ignored" but in the context of the ocular testimony of Azim Gul who was himself injured and the other two witnesses coupled with the corroboratory evidence of Malik Shah. Madar, their presence could not be denied and as the names of the petitioner and the others transpired from the earliest stage, there was no occasion of discovery of their names for which reason the factum of delay could be singled out. Lastly the High Court apportioned the guilt on the petitioner for in its opinion it was a crime "committed by a single assailant" and it was not difficult to discover as to who he was for the reasons thus stated : "Right from F. I. R. The (P. Ws.) have consistently charged Gulbat Khan accused-appellant for firing the first fatal shot at Khan Gul deceased. Again he allegedly fired at Azim Gul (P. W.) and in this way used the weapon more than once. It is in evidence that during the days of occurrence he was a proclaimed offender in a case in which he was charged for effectively attempting at the life of Arab Gul (P. W.). His implication in the murder of the two deceased and the attempt at the life of Azim Gul P. W. Stands proved on record. Walibat and Pio Khan both aged 14/15 years, boys of tender age would not have joined a proclaimed offender in his errand. Their participation in the crime in view of the evidence of the Arms Expert is not established beyond reasonable doubts". Having held so, the High Court acquitted Walibat and Pio Khan and upheld the conviction and sentence of Gulbat.
In seeking leave to appeal, the learned counsel for the petitioner Azim Gul, invited our attention to the ocular testimony which also pointed t the others for having fired at Rabib Gul and Azim Gul which was believed by the Courts below. Again, he referred to the presence of all the A assailants in the house of Pio Khan which was three miles away from where they were arrested, to show their probable presence at the time of the incident and lastly, he contended that the High Court was not justified in holding that it was a case of a crime having been committed by a single assailant for the injuries on Azim Gul appeared to have been the result of shots fired from different weapons.
Having examined these contentions, we find no substance in them as the High Court has on a reasonable analysis of the evidence reached the conclusion that it was Gulbat who was alone responsible for firing at the complainant party. This conclusion the High Court rightly drew from the opinion of the Ballistic Expert that the crime empties found at the spot were fired from the same' weapon. Further, in apportioning the culpability, the High Court has given cogent reasons for excluding the participation of Walibat and Pio Khan as they were of tender ages and it was not expected that they would join the petitioner who was earlier wanted in connection with a case of an attempt on the life of Arab Gut, in committing this crime. Accordingly, it cannot be said that the High Court has committed any error in acquitting the two on the basis of the same evidence The submissions made in this behalf relate to the appreciation of evidence and not to any legal error in the appraisal of the evidence so as to require reappraisal to avoid miscarriage of justice.
Accordingly, we do not see any substance in this petition which is dismissed.
On behalf of Gulbat Mr. Mahmud Ali Kasuri, learned counsel for the petitioner, contended that the incident occurred in. The dark hours and not at 6-00 a. m. As alleged for neither the bullocks 14 to 16 in number, were seen at the spot nor was there any trace of a goading stick to establish that the complainant party were proceeding to- plough the land. Again it was submitted that the arrest of Haibat Khan alongwith the others at 7-00 p. m. The same day went a long way to indicate in the background of the delay in lodging the F. I. R. That the names of the assailants were not known and that they were being sorted out. It was further urged that having regard to the number of shots fired and specifically attributed to Gulbat and ' the others, the crime empties appear to have been fired from some other gun by an unknown assailant. It was further stressed that the rifle recovered from Gulbat was not the crime weapon as there was no evidence of its use. Further, the witnesses spoke of a topak and not a rifle and therefore, he could not have been the person who had fired the shots. The learned counsel also referred to a discrepancy in the evidence of Malik Shah Madar and Mina Gul as to how the latter bad proceeded to the police station. Malik Shah Madar had spoken that he had gone in a tractor while Mina Gul stated that he went on foot and while proceeding to village, Dalian, he went in a tractor. The learned counsel also emphasized the fact that Mina Gut was not in possession of the details of the incident and for this reason his statement was not recorded which evidently showed that till that time, the identity of the assailants was not known.
And lastly that the prosecution witnesses had committed the same mistake in giving the number of shots having been fired which was not accepted by the High Court and therefore, their evidence required corroboration.
' Now, all these submissions relate to the appreciation of evidence. Taking the first submission, it appears that an inference is sought to be drawn from the absence of the bullocks and the goading stick from the spot that the incident had occurred in the dark hours. However, it is in the evidence- that the bullocks ran away from the spot on bearing the gun shots. This explanation cannot be regarded as improbable when considered in the light of the evidence of Malik Shah Madar who repaired to the spot on hearing the shots and had seen the injured Azim- Gul and the other two prosecution witnesses at or about the stated time. The absence of the goading stick for that reason also loses its importance. Learned counsel, apart from this feature, was not able to point out from any circumstance in the evidence that the crime was committed earlier. The High Court also placed reliance on the testimony of Malik Shah Madar, a disinterested witness and there appears to be no reason as to why he would make a false statement as to the presence of these witnesses who disclosed to him the names of the culprits. As to the presence of Haibat Khan alongwith Gulbat and the other two at the time of their arrest, it is true that his name is mentioned in Exh. P.
B/2 but that by itself would not indicate that he was also involved in this crime. In the absence of any suggestion having been made either to Zardad Khan, A. S. I. Or the S. H.
0. Mohammad Sharif Khan. To elicit an explanation as to how the name of Haibat Khan transpired in the document, the submission loses its force. It is apparent from the record that the names of the real culprits had transpired earlier and the raid was conducted thereafter to arrest them. But as Haibat Khan also appeared to be present there, he was also taken into custody as he was a proclaimed offender. The Courts below have accepted the ocular version as to the identity of the assailants. Hence there could not be any doubt for there is nothing on the record to suggest that the time consumed was because of deliberations to ascertain the identity of the assailants to sustain the plea that lie was taken into custody as a suspect.
' Coming now to the third submission that Gulbat having been armed with a rifle, he could not be attributed the role of having fired with a shotgun, the fact remains that the witnesses have stated that he was armed with a 'topak' which word means a fire-arm and therefore, it is idle to argue that he was not armed with a shot-gun at that time. The contention rests on a hypothetical plane in the absence of any other evidence to establish the identity of the weapon. It is also far-fetched to assume that the shots were fired by an unknown assailant on the premise that Gulbat was armed with a rifle which is not factually established. In regard to the' discrepancy as to how Mina Gul went to the police station, the learned counsel laid emphasis on the statement of Malik Shah Madar that he had gone on a tractor but no queition was put to Mina Gul in the wake of his own assertion that he had gone on foot. This being so, no stress can be laid on this discrepancy. As to why Mina Gul's statement was not recorded, the S. H.
0. Mohammad Sharif Khan stated that he was not in possession of the details of the occurrence which cannot be construed to mean that he was not aware of the names of the assailants. Mina Gul on being confronted with his 161 statement has stated that he was informed about the occurrence by the villagers. No further question was put to him to ascertain as to whether he was given the names of the assailants. At least some question should have been put to him to further seek an answer in this behalf which was not done. Even this statement does not exclude the possibility that he was aware of the names of the assailants. Therefore, if the occurence had been disclosed to him then the names of the assilants would also have been disclosed to him in the normal course. Besides, this feature cannot be appraised without the other evidence on the record for drawing an inference favourable to the petitioner. The Courts below have accepted the fact.
That the prosecution witnesses had disclosed the names of the assailants to Malik Shah Madar and it does not appeal to reason as to why Mina Gul would have been kept in the dark. Accordingly, this submission is without substance. It is true that the witnesses have stated that more than six shots were fired but the context of the finding of the High Court the evidence does not become unreliable for the identity of the petitioner stands corroborated by the corroboratory evidence of Malik Shah Madar who is a disinterested witness. The mistake in the number of shots would not be pivotal I otherwise the evidence is accepted as being reliable. The learned counsel was not able to dislodge the conclusion as to the culpability of Gulbat for the reasons given by the High Court as being the only assailant who had fired. Finding no error in the appraisal of the evidence, we seen merit in the petition which is dismissed