1. MUHAMMAD HALEEM, J.-The petitioners were tried along with Sher Muhammad for the murder of Taja at 5 p.m. .On 31st of March 1974, near Chowk Adil in Chak No. 429/G. B. While he was proceeding to catch a bus for Tandlianwala and as he approached the dry water channel, the petitioners and Sher Muhammad emerged from the dry water channel and on the Lalkara given by Sher Muhammad, who was armed with a scythe, second petitioner fired one shot from his .12 bore pistol at Taja, who fell down. Thereafter, the first petitioner came near him and fired one shot from his .12 bore pistol at his temple. Taja expired instantaneously. The incident was witnessed by his brother-in-law, Amir Ali, P.W. 8, Shahra, P. W. 11, who was closely following the deceased and Shahadat Khan, P. W.40, a Lambardar, who had just alighted from the bus at the Adda. Amir Ali proceeded to Police Station Tandlianwala where he lodged the fast information report the same day at 6 p. m.
2. The deceased, along with 4 other persons, was tried for the murder of Mir Muhammad, an uncle of Muhammad Ashraf, and "Phupha" of Bhai Khan, 10/12 years prior to the present incident but he was acquitted along with the others. They had, therefore, avenged that murder by killing, the deceased.
3. From the spot two crime empties were picked up and on 6th of April 1974, while Niaz Ahmad, A. S. I., was at Chowk Adil, the petitioners appeared before him and produced their weapons which were taken into possession.
4. The autopsy on the deceased disclosed that he suffered injuries from two gunshots and one of them on the temporal region had burnt margins.
5. The trial Court, on its analysis of the evidence in regard to the motive, reached the conclusion that it was established. It was further of the view that the presence of Shahadat Khan and Shahra was established beyond doubt ; and in assessing their evidence it held :- " . . . I need not go into details of what they have deposed and it would be sufficient to say that their statements are in full support of the prosecution's case, that there is no discrepancy worth notice in them and that at least Shahadat Khan (P. W. 10) and Shahra (P. W. 11) are quite impartial. Even the relationship of Amir Ali (P. W. 8) is not a circumstance to discredit his statement. Ordinarily, therefore, their statements should be taken as quite sufficient to establish the prosecution's case beyond, all reasonable doubt, at least against Bhai Khan and Muhammad Ashraf accused."
6. As to the production of the fire-arms by Bhai Khan and Muhammad Ashraf, the trial Court held that it was impossible to believe that they would have, on their own, produced the guns before the investigating officer at Chowk Adil. It, therefore, rejected this evidence. The trial Court further distinguished the case of Sher Muhammad on the footing that he did not participate in the crime ; and to this extent the ocular testimony was not substantiated and thus failed to inspire confidence.
7. Accordingly, he was given the benefit of doubt and acquitted. The other two were convicted under section 302 read with section 34, P. P. C. And sentenced to death. They were also ordered to pay a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for six months.
8. On appeal and reference, the High Court maintained the convictions and sentences, after re- assessing the evidence. It believed the ocular testimony furnished by these three witnesses who had fully supported the prosecution case. In regard to Amir Ali the High Court held that he was in no manner connected with the murder of Mir Muhammad and in the absence of any material on record to show that he was inimically disposed towards the petitioners, he had no reason to falsely implicate them on this serious charge. It further held that he had given a plausible reason for accompanying the deceased and hence his presence cannot be denied. As for the other two witnesses, the High Court also held that they had given cogent reasons for their presence; and as their testimony could not be shakened in cross-examination in any substantial respect, it inspired confidence. Having held the presence of these witnesses to have been established the High Court repelled the contention that being chance witnesses, no reliance could be placed on their evidence. The High Court further rejected the plea that there was no motive for the petitioners for committing the murder in the presence of the sons and brothers of Mir Muhammad and also for the further reason that the murder was committed long ago and, therefore, there was no immediate reason for the petitioners to take upon themselves the responsibility to avenge that murder. In this behalf the High Court held . . . Not infrequently mere lapse of time does not eradicate the desire to take revenge. People do wait for years to get a proper opportunity. It cannot, therefore, be said that the appellants did not have a motive to commit the crime."
9. Lastly, on the plea that on the same evidence Sher Muhammad had been acquitted and, therefore, it would not be safe to rely on it for convicting the petitioners, the High Court held that all that attributed to him was a Lalkara, without any involvement in the crime and this was enough to distinguish his case from the others. The High Court, in holding so, impliedly held that this conclusion would not adversely affect the reliability of the witnesses.
10. In seeking leave to appeal, the learned counsel for the petitioners, again contended that the evidence was not reliable to sustain conviction of the petitioners on the grounds urged before the Courts below. But this relates to the appreciation of evidence; and as, the Courts below have believed their evidence, we see no reason to re-assess it in the absence of any legal error in its appraisal.
11. The petition fails and is hereby dismissed.