1. ' NASIM HASAN SHAH, J. This is a petition for leave to appeal directed against the judgment of the Peshawar High Court dated 2.3-77 in Criminal Appeal No, 66 o f 1977 whereby the appeal of the respondents against their conviction and sentence was accepted and they were acquitted of the charges levelled against them.
2. ' The facts which form the background are that the respondents Barkat Ali Shah aged 32 years, Bagh Hussain Shah aged 35 years and Said Ghani Shah aged about 24 years son of Said Akbar Shah residents of Ziarat Killi were tried under section 302, P. P. C. Read with section 34, P. P. C. On the charge of double murder for killing Qaim Shah, and his brother Alam Shah, sons of Said Akbar Shah, resident of the same village on the night between 12th and 13th June, 1975, at about mid-night by firing at the deceased in furtherance of their common intention in the courtyard of the house of Qaim Shah.
3. ' The occurrence was reported by Qaim Shah deceased himself vide F. I. R. (Exh. P. A.) after he was brought in an injured condition to the Police Station, Tangi at about 2-00 a.m. On 13-6-75. As he expired a few ,hours later, this F. I. R. Was treated as a dying declaration. In this statement Qaim Shah had named all the three respondents as the assailants. The motive for the attack was stated to be a dispute over the joint property with the accused/ respondents. In this statement it was also mentioned that his brother Islam Shah (P. W. 8) and his mother-in-law Mst. Badshah Zarina (P. W.
4. 9) were in the courtyard of the house on the fateful night. This F.
1. R. Was endorsed by Mir Alam Shah, the other injured person, who had also been carried to the Police Station along with Qaim Shah and in token thereof had affixed his thumb impression on the said F. I. R. Thereafter both the two injured victims were removed to the Civil Hospital, Tangi for immediate medical care and while Qaim Shah was being attended to by the doctors in the hospital the Investigating Officer also recorded the detailed statement of Mir Alam Shah under section 161, Cr. P. C. (later marked as P. W. 11/1). Since Mir Alam Shah also succumbed to his injuries a few days later, this statement was also treated as a dying declaration.
5. ' The respondents allegedly absconded after the commission of the offence and were declared proclaimed offenders. However they surrendered on 6-7-75 and were taken into custody. At the trial prosecution relied on the testimony of the two ocular witnesses Islam Shah and Mst. Badshah Zarina, the dying declaration of Qaim Shah and Mir Alam Shah (Exhs. P. A. & P. W. 11/1), the evidence of Muzaffar Shah P. W. a neighbour of Qaim Shah deceased who had allegedly rushed to the scene after hearing the reports of the firing and the cries of the inmates and was informed by Qaim Shah deceased on his enquiry that he was shot at and injured by Barkat Ali Shah and said Ghani Shah and Mir Alam Shah told him that Bagh Hussain Shah had fired at him and injured him. The medical evidence which showed that the deceased had been fired upon by a shot-gun and pistol corroborating the version given in the dying declaration of Islam Shah (Exh. P. W. 11/1), the recovery of electric bulb of 100 watts which was left lit at the relevant time and its light had provided the source of identification of the accused and the motive of the aspects for killing deceased.
6. ' The learned Additional Judge Peshawar was satisfied that the case of of the prosecution stood established. In this connection he observed that the consistent statements of the P. Ws. The charge in the two dying declarations coupled with necessary corroborative evidence of independent nature coming from the recoveries and injuries of two deceased, the abscondence of the accused and motive, which was strong enough to link them with the crime, led to no other conclusion than to the guilt of the accused. He therefore held the respondents guilty under section 302, P. P. C. Read with section 34, P. P. C. On two counts for the murder of Qaim Shah and Mir Alam Shah deceased and convicted them thereunder and sentenced them to death and to payment of fine of Rs, 7,000 each or to suffer further three years' R. I. Each, ' On appeal and reference to the High Court it was found that the learned Judges in the High Court held that the case had not been established beyond reasonable doubt. In this connection it was observed that in the dying declaration of Qaim Shah (Exh. P. A.) there was no particularisation of the weapons held by each one of the accused, except for the mention that they were holding fire- arms. As regards the second dying declaration of Mir Alam Shah (Exh. P. W. 11/1), it was thought that this was recorded after the injuries of the victims had been examined and it was then known as to what weapons were employed, therefore the weapons held by the accused were particularised namely that Bagh Hussain Shah and Barkat Ali Shah were armed with shot-guns while said Ghani Shah was holding a pistol. So far as the ocular evidence furnished by Islam Shah, brother of the deceased,and Mst. Badshah Zarina, mother-in-law of Qaim Shah deceased, it was held that they had no reason to be present in the house of Qaim Shah. Islam Shah was a married brother of the deceased having his own house and his own family to look after and there was no reason why he should have been present in the house of the deceased. Similarly the presence of Mst. Badshah Zarina at the spot was also doubtful because according to the customs of the country she could not have been living in the house of her son-in-law when she herself was a rich widow. It was further observed that being a dark night the question of identification was vital and the identification of the accused was premised, on the circumstance that, an electric bulb of 100 watts in the courtyard remained lit. This circumstance was not accepted as correct by the learned Judge of the High Court on the reasoning that Qaim Shah was involved in three murders. He and his brother Mir Alam Shah had usurped the entire patrimony of said Ghani Shah and being so vulnerable could not have kept the bulb lighted while sleeping so as to become easy targets of their enemies. While dealing with this question it was also observed that if the two eye-witnesses, namely Islam Shah and Mst. Badshah Zarina were in fact present in the lit courtyard the assailants would not have spared them and it was inferred that their presence at the spot for this reason was doubtful. In view of these features the prosecution case was considered to be doubtful and the appeal was accepted and the respondents acquitted of the charges levelled against them.
7. ' Mian Muhammad Ajmal in support of this petition has attempted to argue that the dying declarations of the deceased made immediately after the occurrence fully implicated the respondents . And the circumstance that the 100 watts bulb was left lighted during the night in the courtyard of the deceased had enabled the respondents to be identified, specially when the parties knew each other intimately. He also submitted that the eyewitnesses, viz. Islam Shah and Mst. Badshah were named in the dying declara-tion of Qaim Shah which was made almost immediately after the occurrence and that there was nothing unnatural in the said witnesses sleeping in the compound of the deceased as they were very close relations of the deceased, he also referred to motive which the respondents had against the deceased which led them to commit the double murder. In acquitting the respondents, it was lastly urged a grave miscarriage of justice had occurred.
8. We have gone through the statements of P. W. 3 and P. W. 9, the eyewitnesses and find that there was deep-rooted enmity between the parties, in A fact the parties appear to be saturated with enmity on account of their disputes and therefore the respondents would be suspected as the assailants by the victim party. The crucial question therefore is regarding the identification of the assailants. It is an admitted position that the occurrence took place on a dark night however the assailants are alleged to have been identified because a 100 watts electric bulb was left lighted in the compound during the night. If this was so the identification of the assailants would be possible but the learned Judges in the High Court have examined this aspect of the matter and held that they could not believe that the deceased were indeed sleeping with an electric bulb switched on in the courtyard. In this connection it was noted that the deceased themselves were suspected of having B committed several murders and could normally be taking precautions so as not to be identifiable at night. Moreover it would be difficult to sleep with a lighted bulb on and that the story of the lighted bulb appeared to have been introduced only to establish the point of identification.
9. We would observe that the question whether the bulb was left lighted during the night is a question pertaining to the appreciation of evidence.
10. ' The High Court has taken the view, after considering the relevant circumstances that this part of the prosecution case could not be believed. No doubt a different view on this point may be possible, but in these proceedings this Court cannot interfere with a finding of the High Court on such a question. Since on the question of identification the view taken by the High Court is a possible one and if correct, destroys the prosecution case, no case for interference is made out.
11. This petition therefore fails and is dismissed hereby.