1. SHAHABUDDIN, J. The appellant Wazir Khan was tried along with two other Fateh Khan and Gulmir by the Additional Sessions Judge of Mianwali for the murders of Mamrez Khan and Azim Khan, but only the appellant was convicted and sentenced to death for the murder of Azim Khan, while in respect of the other murder all the accused were acquitted. The appel--lant's conviction and sentence of death were confirmed by the High Court of West Pakistan, Peshawar Bench and this is an appeal by special leave from the judgment of the said Court.
2. The parties were related to one another. Fateh Khan accused, deceased Mamrez, P. W. 8 Alam Khan, father of the other deceased person, Azim Khan, and one, Gadai Khan, were brothers, while one of their, sisters, Mst. Bakhto, a widow, had been married to the appellant. The relations between P. W. 8 on the one hand and the appellant, Fateh Khan and Gulmir on the other were strained. As the appellant was on terms of criminal intimacy with Mst. Bakhto before he married her P. W. 8 did not approve of their marriage, but Fateh Khan was happy about it apparently because he had married the appellant's sister. Subsequently P. W. 8 suspected both the appellant and Gulmir accused in respect of a theft that had occurred in the witness's house. But Mamrez was friendly with P. W.
8. These brothers were living in their ancestral courtyard till the death of their uncle Ahmad Khan, but thereafter all of them except P. W. 8 shifted to their uncle's house which was situated in a courtyard different from where P. W. 8 was living. While matters stood thus the nikah of another sister of Alam Khan who was residing with the other three brothers was fixed for 28th August 1956, but the feast was to be on the night preceding. Fateh Khan accused wanted to have the food cooked in the courtyard of P. W. 8, but the latter said that it could be so done: only if the appellant and Gulmir were not invited. Fateh Khan was not agreeable to this course and P. W. 8 yielded ; but his son Azim Khan a Police Constable who came that evening persisted in objecting to the course Fateh Khan was insisting on and in this connection Azim Khan referred the matter to Mamrez who undertook to dissuade Fateh Khan from inviting the appellant and Gulmir, but before he could go to Fateh Khan the latter left the courtyard shouting that he would invite the appellant whatever the decision of P. W. E was. Next morning at 4 a.m. When people had got up and were engaged in their usual routine and arrangements for the slaughter--ing of a cow were being made, the three accused armed with guns came into P. W. 8's courtyard when P. W. 8 and Azim Khan objected to the presence of the appellant and Gulmir. There was an exchange of words between P. W. 8 and Fateh Khan when the appellant stepped forward and fired at Azim Khar who fell down and died. The other two accused then fired at P. W. 8 who however escaped by sitting down at the crucial moment. All the accused then started running away wnen Mamrez Khan chased them and on his getting near them, Gulmir turned round and fired at Mamrez twice when he fell down and died.
3. This was the version of P. W. 8, and P. Ws. 9 and 11, the other two eve-witnesses, supported hint regarding the occurrence as well as the incident of the evening previous. The mother of the deceased Azim Khan, who had also been cited as an eye--witness but whom the Public Prosecutor gave up on the ground that her evidence was not necessary, was examined by the trial Judge as a Court witness. Her evidence supported that of her husband only as far as the occurrence in their courtyard was concerned. She stated that she could not say where and by whom Mamrez was killed as she did not leave her courtyard. The appellant Wazir Khan and Gulmir accused stated that they were not present at the spot at all and they had nothing to do with the occurrence, while the version of Fateh Khan as stated in the Committing Magistrate's Court and at the trial was that Alam Khan wanted to obstruct the arrangements made for the marriage in the courtyard to which Fateh Khan was also entitled, that while deceased Mamrez was making arrangements Alam Khan asked Mamrez to remove all that had been done in the courtyard when there was a quarrel between the ,brothers, that Azim Khan then fired hitting Mamrez on the foot who however did not fall down, but entered his kotha and bringing out a gun fired at Azim Khan who fell down and died. At that stage Ali Khan (P. W. 9) arrived with a gun and he and Alam Khan, (P. W. 8) who bad a rifle which he brought from his kotha chased Mamrez. Ali Khan fired at him but Mamrez did not fall down. Then Alam Khan fired and killed Mamrez. No witnesses were examined for the defence.
4. The trial Court accepted the version of the prosecution only with regard to the attack on Azim: The rest of the version namely that accused Fateh Khan and Gulmir Khan fired at Alam Khan and that Mamrez was fired at and killed by Gulmir was not accepted as true. The trial Judge found it difficult to believe that all the accused were armed with guns and that two of them fired at Alam Khan and yet missed him. This, he regarded as an exaggeration introduced by the witnesses. The learned Judges of the High Court found that there was no conclusive proof as to who actually killed Mamrez. They, however, did not see anything inherently improbable in the evidence of the eye- witnesses so far as the attack on Azim Khan was concerned.
5. The main ground urged at the time special leave to appeal was prayed .For and again in the appeal was that the evidence in respect of both the occurrences being of the same witnesses, discrimination between the appellant and the other accused was made on mere surmises and not on any principle. But on consideration of the facts of the case we find that it cannot be said that the evidence with regard to both the murders was identifically of the same quality. Azim Khan and Mamrez Khan were killed at two different places, in different circumstances though the attack on, them was in the course of the same transaction. As far as Azim Khan was concerned the main evidence was that of his father P. W. 8 and his mother (C. W. 1). It is true that the father's evidence as to what happened subsequent to Azim Khan's murder was not relied upon, but' from that it does not follow that his evidence with regard to what happened to his son in his own courtyard should be disbelieved. In the nature of things, he as well as his were were the most natural witnesses regarding the attack on Azim Khan and it was reasonable to accept their evidence only with regard to what happened in their courtyard. In fact, C. W. 1 frankly deposed that she could not state where and by whom Mamrez was attacked as she did not leave the courtyard. The trial Judge found it difficult to believe that she was substituting a perfectly innocent man for the real murder, while the learned Judges of the High Court observed that she was the most natural witness when her husband and son were involved in a dispute and there was nothing on record to show that on the morning of occurrence she was absent from her house.
6. It was contended by Mr. Shamim Hussain Kadri that as the occurrence took place in the small hours of the morning these witnesses could not have seen clearly what happened, but the evidence does not indicate that at the time of the occurrence it was dark and people could not see clearly what was happening. P. W. 8 puts the hour of occurrence at 4 a.m. While the other witness said that it was at nimazwela. However it is very clear that people were attending to their routine and arrangements were also being made for slaughtering the cow at that time. I was then argued that in view of the version of the accused the appellant should have been given the benefit of doubt. But the defence version was rejected by the Courts below and we think they were right in doing so. There were only two injuries on Mamrez, both of which were on the upper part of his body.
7. There was no injury on the foot. There was no reason for Azim and Mamrez to shoot each other. The evidence in the case clearly indicates that Mamrez was on the side of P. W. 8 and his son. The version of Fateh Khan accused that Mamrez was on his side was not substantiated by evidence.
8. The appeal is, therefore, dismissed.