1. NASIM HASAN SHAH, J.--This order will dispose of Cr. P. S. L. A. No. 56-R of 1979 and Cr. P. S. L. A. No. 70-R of 1979, as they have been heard together. However, the learned counsel for the petition in Cr.
2. P. S. L. A. No. 70-R of 1979, Sardar Muhammad Ishaq Khan, submitted that these two matters may be dealt with separately as the incidents giving rise to the two petitions are quite distinct. Hence the petitions are being attended to separately.
3. Cr. P. S. L. A. No. 56-R/79 : This petition is directed against the order of acquittal passed by the learned Additional Sessions Judge dated 28-4-1977, whereby the respon--dents 1-8 herein were given the benefit of doubt and acquitted. A revision (Cr. R. No. 593/77) was preferred against the said order but the same, too, was dismissed by a Division Bench of the Lahore High Court vide order dated 19-3-1979. Hence this petition for leave to appeal.
4. The relevant facts are that on 11-8-1974 at about 8-00 a.m. In Village Sihal, District Rawalpindi the Barat of one Ali Akrar was proceeding in front of the house of the petitioner (Khan Bahadur), when some of the members of the Barat, who were carrying fire-arms, fired in the air in honour of the occasion. Khan Bahadur, petitioner, herein, asked them to stop firing in front of his house but they paid no heed to him. Instead they got infuriated and resorted to indiscriminating firing in the air.
5. Muhammad Aslam and Muhammad Khan respondents 1 and 6 respectively were allegedly armed with rifles while the remaining respondents were armed with guns. They climbed over the roof of a nearby patwarkhana and from there opened fire on the house of Abdullah Khan (brother of Khan Bahadur). The wife of the said Khan Bahadur, Mst. Khudeja Bibi, was present in the courtyard, urinating her son Basharat. The shot fired by Mushtaq respondent hit Mst. Khudeja Bibi in her abdomen and also her son on the neck. The second shot fired by Hukam Dad hit Mst. Khudeja Bibi in the chest, as a result she fell down. The remaining respondents fired on the petitioner Khan Bahadur, who escaped unhurt as he took shelter in the room. Dorab Khan and Muhammad Khan P.
6. Ws. Knot produced) interfered and the firing was stopped. According to the prosecution, besides the two brothers, Khan Bahadur petitioner and Abdullah Khan the occurrence was witnessed by P.
7. Ws. Barkat Bibi, Mst. Sughran daughter of the deceased, Dorab Khan and Muhammad Khan. Further the case of the prosecution that Mst. Zewaran P. W. 9 sister of Mst. Khudeja Bibi deceased arrived at the place of occurrence and was given the details of the incident by the deceased. (This is the first dying declaration). She then escorted Mst. Khudeja Bibi and Basharat, the injured persons, to the G.
8. H. Q. Hospital, Rawalpindi and got them medically examined. As Mst. Khudeja was fit to make a statement, as certified by the doctor, the S. I. Recorded her statement Exh. P. A. (F. I. R.) in the hospital. She, however, later on died on the following morning. The said statement is being described as the second dying declaration.
9. All the 8 respondents were put up for trial. The trial Judge did not rely on the dying declaration on the ground that Mst. Khudeja Bibi was in such a precarious condition that she could not have made a coherent and a detailed statement. The two eye-witnesses, namely, Mst. Sughran and Abdullah Khan were also not relied upon for the reason that Mst. Sughran, who was daughter of the deceased, was only about 7/8 years old at the time of the occurrence and could not be expected to remember the details of the incident which she gave at the trial. Moreover, her name was not mentioned in the dying declarations nor did it figure in the police statement of Abdullah Khan P. W.
10. (It may be mentioned that Abdullah P. W. Was one of the accused along with Khan Bahadur petitioner in the other case-subject-matter of Cr. P. 70-R/79. The learned trial Judge also observed that the eye-witness account was not compatible with the medical evidence. He, therefore, gave the benefit of doubt to the accused-respondents and acquitted them. The husband of the deceased (Mst. Khudeja Bibi), Khan Bahadur, filed a revision petition in the High Court wherein the learned Judges, after the detailed examination of the various circumstances agreed with the view taken by the learned Sessions Judge that the case was not free from doubt and dismissed the revision petition.
11. In support of this petition for Special Leave to Appeal, Mr. Zafar Mahmood has submitted that there was abundant evidence consisting of ocular account given by Mst. Sughran Bibi, P. W. 10, and Abdullah Khan P. W. 11, in addition to the dying declarations of Mst. Khudeja Bibi deceased which fully established the case against the accused-respondents.
12. We find that this aspect of the matter has been fully considered by' the learned Judges in the High Court wherein the weakness of dying declarations of Mst. Khudeja Bibi were examined in the circumstance, inter alia, that was noted, that after her lungs had been perforated by one of the injuries it was highly improbable for her to make a coherent statement giving full details. It was also noticed that the other witnesses Dorab Khan and Muhammad Khan were given up and the only other eye-witnesses examined were her brother-in-law Abdullah Khan and Mst. Sughran. Whereas Abdullah Khan was accused in the connected case, the infant Mst. Sughran was not named as an eye-witness in the F. I. R. The further circumstance causing doubt was that no reference was made in the F. I. R. About the circumstances in which Khaki Jan one of the members of the Barat party received fire-arm injuries and expired. It is for his murder that Khan Bahadur petitioner and Abdullah Khan P. Ws. Were tried (the subject-matter of Cr. P. 70-R of 1979) and the prosecution story that Khaki Jan had received a fire-arm injury at the hands of one of the members of the Barat party appeared to be highly improbable. Similarly, the defence version that Khan Bahadur fired at his wife and son to create a defence for him in the counter-case, wherein he was accused for the murder of Khaki Jan, was also highly improbable. It was, therefore, opined that both the prosecution and defence had tried to conceal the true facts making the case doubtful. We think that this view is correct and, therefore, the learned Judges in the High Court were justified in giving the benefit of doubt to the respondents: Moreover, the points urged by Mr. Zafar Mahmood pertain to questions of appreciation of evidence. Such matters cannot be gone into in these proceedings.
13. We would, therefore, dismissed this petition.
14. Cr. P. No. 78-R of 1979 (Muhammad Akbar v. Khan Bahadur and The State)
15. The prosecution case as put at the trial in this matter is that respondent No. 1, Khan Bahadur and his brother Abdutlah Khan as well as the complainant party belong to the same village, namely, Village Sihal within the jurisdiction of Police Station Chauntra, District Rawalpind. The incident in the present case also stated to be an offshoot of the happenings attending to Ali Askar's Barat.
16. According to the prosecution there is custom in the village that on the day of marriage the bridegroom along with the marriage procession after marching through the important streets of the village first goes to the house of his relatives such as sisters etc. For paying respect and then goes to the said shrine of `Baba Jarriwala' which is situate in the village and after offering prayers he leaves the house of his brides. The Barat was proceeding at about 8/9 a.m. Towards the house of the sister of Ali Akbar which is adjacent to the house of Khan Bahadar and Abdullah Khan. The deceased (Khaki Jan), his maternal uncle Muhammad Akbar complainant P. W. 7, Walayat Khan, P.
17. W. 8, Nawab Khan, P. W. 9, and Jehan Dad (P. W. Given up being unnecessary) were members of the Barat. When the marriage party reached near patwarkhana respondent No. 1 (Khan Bahadur) armed with a gun and Abdullah Khan accused empty-handed were standing in the lane in front of their houses and were proclaiming that they would not allow the marriage party to pass in front of their houses. On receipt of this information, the marriage party stopped near the patwarkhana. In order to avoid some ugly situation, it was decided that the deceased (Khaki Jan) and the above- named four P. Ws. Should go and ask Khan Bahadur and Abdullah Khan to allow the marriage party to pass in front of their houses. Accordingly, the deceased and the said P. Ws., leaving other members of the marriage party near pat warkhana, went to the respondent and his brother and requested them to allow the marriage procession to pass in front of their houses, but they turned down this request. The obstinate attitude of the accused was resented by Khaki Jan deceased who exclaimed that he would see as to how the marriage party was stopped from passing through the lane. On this Abdullah Khan accused shouted that he (Khaki Jan) should not be allowed to go alive and directed Khan Bahadur accused to see that Khaki Jan did not escape alive. The latter, who had already a loaded gun, immediately fired a shot which hit the deceased on the chest and as a result whereof he died immediately.
18. The motive given was that about four years before the occurrence, the accused Khan Bahadur and his brother Abdullah Khan fired on Anwar Baig and the incident was reported to the Police Station and a case under section 307, P. P. C. Was registered against him and his brother. Khaki Jan deceased was stated to have helped Anwar Beig in prosecuting this case; therefore, the accused in this case bore a grudge against him.
19. Both Khan Bahadur and Abdullah Khan were tried by the same Additional Sessions Judge, who beard the connected case relating to the murder of Mst. Khudeja Bibi. Khan Bahadur made the following statement under section 342, Cr. P. C. In his defence, which was supported by his brother Abdullah Khan accused :- "The complainant party murdered my wife and caused injuries to my son and falsely involved me in this case to save their skin."
20. He also produced a copy of the F.I. R. (Exh. D. A.) in the alleged cross-case relating to the murder of his wife Mst. Khudeja Bibi.
21. The trial Court came to the conclusion that the solitary statement of P. W. Muhammad Akbar about the motive for the crime was not sufficient to prove it because better evidence was available which was not produced. Anwar Baig who was said to have been murderously assaulted by the accused was admittedly alive but he was not produced to prove that Khaki Jan deceased had helped him in the case under section 307, P. P. C. Against the respondent No. 1 and his brother. The trial Court also observed that if the facts about the motive, as asserted, were true, then Anwar Baig or Muhammad Akram would have been the main target of the accused and not Khaki Jan. Moreover, if it was Khaki Jan whose presence with the Barat was the main reason for which the accused did not permit the Barat to pass in front of their house, then he would not have been selected for requesting the accused to permit the Barat to pass through. Consequently, he did not believe the motive part of the story. Notwithstanding this conclusion, the learned trial Judge considering that it was a day time occurrence which according to him was witnessed by disinterested and reliable witnesses, the prosecution story could not be thrown out altogether, despite having put up a false motive for the incident. As regards the fatal injuries suffered by Mst. Khudeja Bibi, wife of Khan Bahadur respondent No. 1 and injuries to his son, the trial Court was of the opinion that the eye- witnesses were not required to explain them as they were not caused during this incident. In this connection reliance was placed upon Muhammad Akbar P. W. Ts statement that he learnt about their injuries when he returned from the Police Station after lodging the F. I. R. Khan Bahadur was, therefore, convicted but Abdullah Khan was given benefit of doubt on the ground that he was empty-handed and assigned the traditional lalkara. He appeared to have been roped in because of his close relationship with the respondent No. 1. Moreover, being a School teacher, he must have been prudent enough not to join hands with his brother.
22. On appeal and reference to the High Court, the learned Judges were of the view that the motive story was so inter-twined with the evidence of the occurrence that if' the motive story was found to be cooked up this would adversely effect the evidence of the eye-witnesses also, particularly when a counter version of the same incident was being alleged by the defence. The learned Judges also were of the view that the reason given leading to that respondent No. 1 did not permit the Barat to pass in front of his house and that it was customary for the marriage party to pass through the streets of the village and the bridegroom first pays a visit to the house of his sisters and other relatives before going to the house of the bride was introduced for the first time by Muhammad Akbar P. W. In his statement before the trial Court. The said witness had, thus, made an improvement. His statement was not considered satisfactory also for the reason that he feigned lack of knowledge regarding the shoo ting of Mst. Khudeja regarding which she had got a case registered. He being the Lambardar of the village, it was highly improbable that he would not know whether Mst. Khudeja Bibi got a case registered and that she and her son had been injured by fire- arms. The learned Judges, therefore, remarked that obviously this witness was trying to conceal facts which defence had brought on record through documentary evidence. The learned Judges were ultimately of the view that the prosecution had failed to prove the motive and had also not been able to explain as to why respondent No. 1 resorted to violence. On the other hand as regards the report made by the wife of respondent No. I to the police about the injuries received by her son, the learned Judges were of the view that they were probably received on account of the indiscriminate firing that took place. In this view of the matter, the further story urged by the prosecution that the three eye-witnesses had gone to the respondent No. 1 to allow the Barat party to pass in front of his house also did not appear to be correct. Moreover, according to' Walayat P.
23. W., there were other routes available to the marriage party for going to the shrine of Baba Jarriwala. Taking into account all the circumstances, especially the circumstance that the P. Ws.
24. Had put up the motive story and also tried to conceal the death of Mst. Khudeja Bibi and injuries to her son, the correctness of the prosecution story was doubtful. Therefore, giving Khan Bahadur the benefit of doubt, his appeal was accepted and he was acquitted. Hence this petition for leave to appeal.
25. Sardar Muhammad Ishaq submitted before us that the evidence on the record had not been properly considered and this had led to miscarriage of justice. According to the learned counsel, the rejection of the evidence of Akbar P. W. On the ground mentioned in the order of the learned High Court that as he had not referred to the injuries to Mst. Khudeja and her son, he could not be believed, was not justified. He further submitted that the statement of Nawab Khan, P. W. 9, had not been adverted to by the learned Judges and the version of the incident given by the eye-witnesses was rejected on the artificial grounds.
26. We have given our further consideration to these submissions but are inclined to agree with the approach adopted by the High Court, namely, that the motive alleged by the prosecution was false and this also reacted adversely on the version given by the eye-witnesses. The failure to mention the injuries to Mst. Khudeja Bibi by Akbar P. W. Showed that the P. Ws. Were concealing some relevant facts. The manner in which the incident is state to have taken place also did not inspire confidence. In these circumstances the learned Judges in the High Court rightly thought that it would no be safe to uphold the conviction of Khan Bahadur, respondent. We cannot, therefore, hold that the learned Judges in the High Court acted erroneously or illegally in taking this view. In fact, a deeper analysis indicates that the points raised before us merely pertain to appreciation of the evidence. This obviously cannot be allowed in the present proceedings.
27. This petition also fails and is dismissed hereby.