ASLAM RIAZ HUSSAIN, J.-This petition for Leave to appeal filed by Asmatullah is directed against the acquittal of Muhammad Siddiq, respondent, by the Lahore High Court vide its judgment dated 10-2-1971.
2. Muhammad Siddiq and Abdur Rashid Khalid, respondents, were, tried for the murder of Abdul Khaliq and Muhammad Shafi, and for murderous assault on Khusbi Muhammad. Both of them were convicted under sections 302/34 and 307/34. Each of them was sentented to death on each count under section 302/34 and each of them was convicted and sentenced to 7 years' R. I. And a fine of Rs. 1,000 under section 307/34. On appeal the High Court maintained the conviction and sentence of Abdul Rashid Khalid but acquitted Muhammad Siddiq respondent of both the charges.
3. Abdur Rashid Khalid filed Cr. P. S. L. A. No. 88/1971 against his conviction while the present appellant filed Cr. P. S. L. A. No. 84/71 against the acquittal of Muhammad Siddiq of the said charge.
By order dated 6-7-1972 leave was granted in Cr. P. S. L. A. No. 88/1971 to re-appraise the evidence on record and it was converted into Criminal Appeal No. 12/1973. Leave, was therefore, also granted in the connected P. L. A. (Cr. P. S. L. A. No. 84/1971) relating to the acquittal of Siddiq and warrants of arrest were issued against him.
4. Criminal Appeal No. 12/1973 filed by Abdur Rashid Khalid came up for hearing on 19/20-5-1975 but the present Criminal Appeal No. 11/1973 was not put up for hearing because warrant for the arrest of Muhammad Siddiq had not yet been executed.
5. After re-appraising the entire evidence a Full Bench of this Court dismissed the Criminal Appeal No. 12/1973 on 20-5-1975. The connected appeal has now come up for bearing before us.
6. According to the prosecution there was hostility between the parties which led to the institution of criminal cases between them one of which was fixed for hearing on 28-7-1966. Abdul Khaliq (deceased) was proceeding to the Court in that connection at about 7 a.m. Muhammad Shafi (deceased) was also proceeding to the Court in connection with another matter Both parties belonged to the same Chak.
The two deceased were friends inter se and similarly the two accused were also each other's friend.
Both the deceased, were riding the same bicycle which was being paddled by Abdul Khaliq.
Asmatullah, P. W. 17, father of Abdul Khaliq (deceased), Khushi Muhammad, P. W. 18 a relative of the said deceased, and Muhammad Ali, P. W. 20 another relative of Abdul Khaliq (deceased) were also going with them on their own business. The road taken by them passed in front of the house of Abdur Rashid Khalid (convicted accused). When the two deceased passed on their bicycle by this house, the two accused came out of the house, armed with guns and both of them fired at the two deceased, as a result of which they fell from the bicycle. Muhammad Siddiq, respondent, also fired at Khushi Muhammad P. W. But missed. The assailants then came near the deceased and fired some more shots at themGhulam Nabi, who was present nearby, also saw the occurrence. .7. Abdur Rashid Khalid came up to Abdul Khaliq (deceased) and took out his pistol from his holster.
But while doing so he dropped three copies of licences on the spot. Both the accused then left the place of occurrence with their weapons. Two of these licences were in the name of Abdur Rashid Khalid in respect of his fire-arm, while the third licence was in the name of his brother (also named Siddiq) in respect of a revolver.
8. .The two deceased died as a result of injury received by them. Asmatullah, P. W. Took up the above-mentioned licences from the spot ; went to the police station and lodged a report on the same day at 9 a.m. He also handed over the above-mentioned fire-arm licences to the A. S. I., who took them into possession. The A.S.I. Muhammad Nawaz also recovered six empty .12 bore cartridges from the spot.
9. Siddiq, respondent, was arrested six days later i.e. On 3-8-1966. The A. S. I. Also recorded the statements of Rehmat Ali, P. W. 15 and Khushi Muhammad, P. W.
18. Abdur Rashid Khalid was, however, missing and was arrested on 3-9-1966 i.e. After 35 days.
10. Post-mortem examination revealed a large number of fire-arm injuries on the persons of the two deceased, some of which had scorching and burning marks showing they had been shot ,by fire-arms from a close range, and other injuries.
11. The trial Court relied on the testimony of Asmatullah, P. W. 17 Khushi Muhammad, P. W. 18, Ghulam Nabi, P. W. 19 and Muhammad Ali, P. W.
20. It also relied on the recovery of the licences left at the spot by Abdur Rashid Khalid. The empties recovered from the spot, however did not match the gun, recovered from the accused, and evidence of recoveries was, therefore, not pressed into service.
12. Both the Courts below found that the testimony of the eye-witnesses required independent corroboration. In the case of Abdur Rashid Khalid, this was available in the shape of his licences left at the spot by him, which were picked up by Asmatullah and produced before the police shortly after the occurrence. His abscondence for 35 days was also taken as, a piece of corroboration against him. The learned High Court also mentioned the motive and the medical evidence as pieces of corroboratory evidence. The conviction of Abdur Rashid was, therefore, maintained by the High Court. But it felt that sufficient corroboration had not come forth with respect of Muhammad Siddiq, respondent, and he was therefore, acquitted.
13. The learned counsel for the petitioner submitted before us that although none of the three licences left on the spot could connect Siddiq with the offence yet other pieces of evidence e.g. Abscondence, motive and medical evidence was available against him and ocular testimony should' have been believed against him also and his acquittal should, therefore, be set aside.
14. Considering the evidence on record, however, we are not inclined to agree with these contentions. No doubt the main piece of corroboratorevidence available against Abdur Rashid Khalid were the licences left b him on the spot but another material circumstance corroborated the testimony against him is that he remained in abscondence for 35 days. While Siddiq was arrested after only six days. The other pieces of evidence namely motive and the medical evidence are not such as would go to corroborate the ocular testimony with regard to the identity of the assailants. These pieces of evidence have been used against Abdur Rashid Khalid only a additional factors tending to support the prosecution case against him.
15. In view of the above-noted facts, we feel that the case of Muhammad Siddique, respondent, is distinguishable from that of Abdur Rashid Khalid, co-accused, and he i.e. Muhammad Siddiq, respondent, had, therefore, been rightly acquitted by the High Court.
The appeal is, consequently, dismissed.