MIAN BURHANUDDIN KHAN, J. This appeal is directed against the judg--ment of the Lahore High Court, dated 20.9-1978 in Criminal Appeal No. 692 of 1969 whereby Muhammad Gulzar, respondent (appellant before us) was convicted under section 302, P. P. C. For committing the murder of Khan Muhammad, and was sentenced to death and a fine of Rs. 3,000 as compensation to the heirs of Khan Muhammad deceased.
2. Prosecution case against the appellant is that on 28-5-1967 Khan Muhammad deceased, accompanied by his son Hashmat A.I P. W. 19 Rahmat Khan, P. W. 20 and Muhammad Nazir (not produced) left their village Tumair for Rawalpindi of 11 a.m., to enquire after the health of Khizar Zaman who was hospitalized some time earlier. When they were heading towards Chowk Cbirk to board a bus for Rawalpindi, and were proceeding near a hamlet known as Dhok Mujara, the amused persons emerged from a depression along the path and the assailants namely Muhammad Guizar, armed with a revolver, Kamal Khan and Muhammad Nawaz (the acquitted accused) armed with '12 bore guns, fired their fire-arms simultaneously at the deceased which hit him and he expired instantaneously. The assailants decamped with their weapons. Rahmat Khan and Muhammad Nazir remained with the dead body while Hashmat A.I proceeded to P. S. Bhara Khan for report and lodged the F. I. R. Exh. P. A. At 2-30 p.m. Which was recorded by Syed Chan Pir Shah, S. I. P. W. 22 who accompanied the reporter Hashmat A.I to the spot where he prepared the inquest report and the injury statement of the deceased and sent the dead body to the mortuary for post-mortem examination. He collected some blood-stained earth from the spot, blood- stained wad Exh. P/1 and a pallet Exh. P/2, and took the same into possession vide Memos. Exhs. P. B.
And P. C.
3. Dr. Rauf Beg Mirza performed the post-mortem examination and found the following injuries on the dead body of Khan Muhammad:
(1) Three round wounds ----- round each on the front of the middle of the body at the region of sternum. One pellet passed through the right curricle of heart. A pellet was recovered on dissection.
(2) Two superficial round wounds ----- round each with black margins on the front of left chest at the level of the left nipple and 1--- on the left of middle line.
(3) One round wound 1/3--- round with black margins on the front of left chest above the left nipple. A piece of bullet was recovered under this injury.
4. As stated earlier, the accused absconded after the commission of the offence but later on Muhammad Gulzar surrendered himself before a local Magistrate Muhammad Anis Sadiq, P. W. 12 on 1-6-1.967 and produced an application Exh. P. R. And a '12 bore pistol P-13. The learned Magistrate remanded the accused to the custody vide his order Exh. P. R. 2 written on the back of the said application. The accused was also wanted in a theft case registered sometime in April, 1967 and in that connection the police obtained his custody on 5-6-1967 for necessary interrogation. While in custody Muhammad Gulzar, on the 12th of the same month, led the police to his house and produced a revolver Exh: P. 11 which was lying buried underneath the ground inside a small room in his house, which was taken into possession vide Memo., Exh. P. K.
5. Motive for the crime is stated to be a persistent hostility between the deceased and Kamal Khan and Muhammad Nawaz (acquitted accused) who are related inter se and their tenant Muhammad Gulzar the present appellant. .
6. The learned Sessions Judge, Rawalpindi who tried the three accused for the murder of Khan Muhammad not satisfied with the prosecution evi--dence acquitted all the three accused namely Jamadar Kamal Khan, Muhammad Nawaz and Muhammad Gulzar vide his judgment dated 7-3- 1969. An appeal was filed by the complainant side before the Lahore High Court which resulted in the impugned order.
7. In the impugned judgment of the High Court the learned Judges have dealt with the salient features of the case and held that the shot fired by Muhammad Gulzar proved effective and resulted in the death of the deceased and finding no extenuating circumstance in favour of Muhammad Gulzar, awarded him death penalty. The learned Judges also placed complete reliance on the ocular testimony of Hashmat A.I, P. W. 19 and disagreed with the Inspection Note prepared by the learned trial Judge on 23-2-1969 holding that the spot happened to be a pagdandi lying towards the eastern side of a corner field and this path is adjoined on the eastern side by depression which is almost three feet deep, about 45 feet in length and 30 feet in width and any person sitting in this depression would be seen by the person coming on this path: Thus, it does not appeal to reason that the deceased, alongwith the witnesses, came upon the accused suddenly and could not see them from some distance. The learned Judges observed that this Inspection Note would not lead to any final conclusion and that the learned Sessions Judge visited the spot after two years of the occurrence and the topography could have drastically changed and the bushes grown in that area might have been thinned down by the owners. One can doubt that the contours of the spot have remained static.
8. The prosecution case further finds support from the application Ex. P.R. Wherein Muhammad Gulzar has stated that false cases against him were registered at the instance of Khan Muhammad deceased and the last being a case of theft of bullock of Shaukat A.I son of the deceased. On the day incident he was returning from Dhok Mochian and proceeding towards a ravine known as Jabba for having a dip when he met the deceased and his grandson Saghir at about rotiwela, and as he passed by the deceased, he (deceased) abused him for stealing his bullock and he returned the abuses. The deceased was armed with a '12 bore rifle ('12 bore gun). As he had a pistol, so apprehending danger to his life, he fired at the deceased and ran away, but he could not give the exact number of the shots he fired. This statement is contradictory in itself and does not appeal to reason, and, therefore, the Court is not bound to accept such a statement without placing it in juxtaposition with the prosecution evidence. However, even by this statement a part of the prosecution case is established i.e. Firing of pistol shots at the deceased, but rest of the said statement is against common sense to believe that a person, armed with a shot-gun or rifle would allow his adversary to fire before he uses his gun.
9. We consider that the evidence on record has been properly appraise and the finding of the learned Judges of the High Court is based on sound reasoning. We do not find any reason to interfere with the judgment of the High Court and this appeal is, consequently, dismissed,