1. ANWARUL HAQ, J.-The petitioner, Fateh Khan, was tried, along with his father Muhammad Khan and three brothers named Noor Khan Gulbaz and Dosa Khan, by the Additional Sessions Judge, Mianwali, for the murder of the petitioner's father-in-law Khan Mahi. The other four were acquitted but the petitioner was convicted and sentenced to death. He was also ordered to pay a fine of Rs.
2. 100 as compensation to the legal heirs of the deceased. A Division Bench of the Lahore High Court has, by its order dated 16-10-75, dismissed the petitioner's appeal and confirmed the death sentence awarded to him.
3. The petitioner seeks special leave to appeal.
4. The dispute between the parties arose out of exchange marriages. Mst. Bhoori daughter of Khan Mahi deceased was married to the petitioner about ten years prior to the occurrence, and two minor s1sters of the petitioner were married to two sons of the deceased, but their Rakhsati had not yet taken place. About a year and four months prior to the occurrence the petitioner is said to have divorced his wife, who thereafter went to reside in her father's house. It was alleged that the petitioner and his father Muhammad Khan insisted upon the deceased either to send back his daughter Mst. Bhoori to the petitioner or to obtain divorces from his two sons for the two sisters of the petitioner. The deceased, however, refused to accept either of these alternatives, which refusal enraged the petitioner and his family.
5. The incident resulting in the death of Khan Mahi occurred on the morn--ing of 28 of December 1971 when the deceased had gone to the house of Gul Rang (P. W. S.). Who is a nephew of the wife of the deceased. Abdullah Khan (P. W. 7), a brother-in-law of the deceased had accompanied himth there. After having their meals at the house of Gul Rang. The deceased and Abdullah Khan came out into the street. Gul Rang also accompanied there. They had hardly covered a distinct of three of four karams when the petitioner and the acquitted accused appeared there, armed with rifles.
6. Petitioner's father Muhammad Khan was said to be empty-handed at that time. Fateh Khan fired from his rifle, hitting the deceased on his left flank. On receiving the shot the deceased fell down unconscious. After the depar--ture of the assailants, the deceased was removed to a place called Machh for medical treatment but he expired on the way.
7. The incident was reported by Abdullah Khan (P. W. 7) at Machh Police Station at 1-30 p.m. After covering a distinct of nine miles. The petitioner was arrested a weak later and a rifle was recovered from him along with two live cartridges but as there were no crime empties, the rifle could not be connected with the present incident.
8. At the trial, the prosecution placed reliance on the evidence of the ocular account of the incident given by Abdullah Khan (P. W. 7), Gul Rang (P. W. 8) and Shah Alam (P. W. 9). The Courts below also took note of the fact that the medical evidence corroborated the eye-witness account.
9. While pleading not guilty, the petitioner admitted his marriage with the daughter of the deceased, but asserted that he had himself turned out Mst. Bhoori, and for this reason the complainant-party was inimical towards him. He did not, however, lead any evidence in defence.
10. Both the Courts below have placed full reliance on the prosecution evidence and have acquitted the other accused on the ground that no part was assigned to them in causing any injury to the deceased.
11. Leave to appeal is sought on the following grounds :-
(a) That the incident took place at a distinct of a mile and a half from the house of the deceased, and there is no plausible explanation for the presence of the deceased as well as his companion.
12. Abdullah Khan at that place, except that they might have gone there to assault the petitioner and other member of his family ;
(b) That Abdullah Khan and Shah Alam were chance witnesses for the reason that Abdullah Khan had his residence away from the spot whereas Shah Alam was at that time working at his shop and had no business to be present at the time of the occurrence, although his house is situated in that locality ;
(c) That the witnesses had implicated four innocent persons and has their credibility was not divisible, their evidence should not have been believed as against the petitioner, and
(d) That there is some indication that the deceased had other enemies as well and, therefore, he might have been killed by anyone of them during the course of the night and the petitioner and his family were implicated owing to suspicion and enmity.
13. After perusing the entire evidence brought on the record by the prosecu--tion and bearing the learned counsel for the petitioner, we are of the view that there is no merit in these submissions.
14. Whatever the reason which took the deceased Khan Mahi to the place of occurrence, the fact remains that the Investigating Officer found blood at that place and therefore, it is beyond doubt that the deceased was done to death near the houses of the petitioner, and the witnesses Gul Rang (P. W. 8) and Shah Alam (P. W. 9). Abdullah Khan has given reasonable explanation of his presence at the spot, namely, that he had accompanied the deceased to the house of Gul Rang for recovery a debt. It is true that there is a slight contradiction between the statement of Abdullah Khan in the first information report and his deposition at the trial on the point whether Gul Rang owed money to the deceased or to Abdullah Khan, but we are of the view that this discrepancy is not such as to falsify the entire account given by Abdullah Khan or to lead to the inference that he was not present at the spot. If indeed Abdullah Khan was not present along with the deceased at the relevant time, there is hardly any explanation as to how he was chosen to be a first informant who had seen the occurrence himself.
15. It is true that Shah Alam's shop is some distinct away from his house but he has also given explanation why he returned to his house, namely, that the deceased and Abdullah had first come to his shop and brought him along to the house of Gul Rang. The explanation has been accepted by the Courts below and we see no reason to take a different view.
16. As regards the presence of Gul Rang (P. W. 8) it could not be denied that he has his house right opposite the scene of the crime, and could normally be expected to be present there early in the morning in the month of December. Although the three eye-witnesses closely relation to the deceased. Abdullah Khan being his brother-in-law. Gul Rang being the nephew of the wife of the deceased and Shah Alam being a nephew of the deceased himself, yet they had no enmity or motive to falsely implicate the petitioner in this case. It seems to us that the Courts below were justified in placing reliance on the testimony of these witnesses.
17. The medical evidence confirms the eye-witness account that the deceased was killed by fire from a rifle. The motive for the crime practically stands admitted by the petitioner by saying that his marriage with Mst. Bhoori had gone wrong and he had himself deserted his wife who was a daughter of the deceased. The petitioner has, therefore, been rightly convicted.
18. It is submitted by the learned counsel for the petitioner that as the incident has taken place at the doorstep of the petitioner, we must presum that the petitioner must have attacked the deceased on account of some provocation given by the latter with the result that the imposition of the death penalty would not be justified.
19. The submission made by the learned counsel is in the nature of a specula--tive conjecture, and does not find any support from the record even though the prosecution witnesses were cross- examined at some length. It is, therefore not possible for us to accept the contention that the petitioner acted under provocation given by the deceased.
20. For the foregoing reasons the petition fails and is hereby dismissed.