MIAN BURHANUDDIN KHAN, J.-Leave was granted by this Court vide order, dated 17-2-1980 against the acquittal of two accused/respondents namely Liaqat and Dilawar on the ground that there being no blood-feud or previous enmity between the parties the learned High Court Judges were not justified in rejecting the eye-witness account given by Muhammad A Ismail and his uncle Azizur Rahman specially when Muhammad Ismail himself sustained injuries during the course of the incident which ultimately resulted in the death of his son; and that from the beginning the complainant had charged Dilawar accused for effectively firing at the deceased Mahboobur Rahman and the eye-witness account found full corroboration from the medical evidence as well as the recoveries from the spot which left no doubt as to the place where the deceased was shot.
As regards Liaqat, it was contended that even if he exceeded the right of private defence which would have accrued to him in the circumstances of the case, his case has not been properly considered by the learned High Court and implicit reliance has been placed on his allegation that the deceased had also come armed with a gun; there being no motive for Muhammad Ismail or Azizur Rahman to falsely substitute Dilawar for the real culprit. However, leave was refused against Firdaus, Muhammad Yaqub, Sultan Bahadur and Muhammad Anwar.
2. Accused/respondents, alongwith 4 others, were tried by the learned Sessions Judge, Abbottabad under section 302, P. P. C. For committing the murder of Mahboobur Rahman son of Muhammad Ismail, aged about 18 years, resident of village Monan, Haripur by firing at him with fire-arm, and sentenced Liaqat to life imprisonment and a fine of Rs, 1,000 in default of payment, six months further R. I. The fine, if recovered, was pay able to the heirs of the deceased as compensation; while Dilawar, Firdaus, Yaqub, Sultan Bahadur and Muhammad Anwar were acquitted.
3. Liaqat filed an appeal before the High Court against his conviction and sentence, while Muhammad Ismail father of Mahboobur Rahman deceased also filed a revision petition with a view to secure enhancement of sentence awarded to Liaqat from life imprisonment to death. The State also preferred criminal revision under section 417, Cr. P. C. Against the acquittal of the rest of the accused who had stood trial alongwith Liaqat respondent.
4. Prosecution case is that on 28-12-1975 Muhammad Ismail P. W. 6 was reciting the Holy Qur'an in the mosque at about morning time when Abdul Wahid, Imam of the mosque said that he would be putting a lock in the main door of the mosque at night time after prayer. On this Azizur Rahman P W.
7 said that no one had the right to lock a mosque. This resulted in verbal altercation between Abdul Wahid and Azizur Rahman. Sultan Bahadur, Muhammad Anwar, Muhammad Yaqub (acquitted accused) Muzaffar Khan and Munsif Khan (not challaned by the police) and Liaqat accused/respondent were present in the mosque at that moment and they supported Abdul Wahid. It is alleged that Anwar, Liaqat, Firdaus and Muhammad Yaqub caught hold of Muhammad Ismail and Sultan Bahadur started giving him stick blows due to which Ismail raised alarm which attracted Mahboobur Rahman deceased, who was on his way to the mosque, when Dilawar accused/respondent who was armed with a shot-gun, fired and hit Mahboobur Rahman who died instantaneously. The occurrence, according to the prosecution, was witnessed by Anisur Rahman (not produced) Muhammad Ismail P. W. 6 and Azizur Rahman P. W.
7.
5. The motive, according to the prosecution, is that 3/4 months prior to the occurrence the loudspeaker of the mosque was stolen and people suspected Ismail's sister's son Masoodul Haq for that theft. This brought rift between the parties of Muhammad Ismail and the accused/respondents on the other side. Consequently, Muhammad Ismail, who was Pesh Imam was turned out and was replaced by Abdul Wahid. There was no other enmity.
6. Prosecution examined Muhammad Ismail, first informant (P. W. 6) and Azizur Rahman P. W. 7 as eye-witnesses in the case. Anisur Rahman was abandoned. Besides the ocular evidence of the aforesaid two witnesses, reliance was placed on the statement of Dr. Sardar Saeed P. W. 1 regarding the injuries sustained by Mahboobur Rahman, Muhammad Ismail P. W. 6 and Munsif Khan, the latter is father of Liaqat and Dilawar respondents and Firdaus; acquitted accused. The projecution also relied on the recovery of shot-gun from Liaqat at the time of his arrest from the house of Mst. Allah Jan.
7. Learned counsel for the appellant contended that the eye-witness account receives corroboration from the medical evidence; motive and other evidence available on the record but the same appears to have been rejected on hypothetical grounds. The conclusions arrived at by the learned High Court Judges on these points cannot be justified; that the learned Judges have ignored the vital points and gave unnecessary and undue importance to trivial points; that in view of the statement of Liaqat respondent, recorded under section 342, Cr. P. C. His plea should have been examined in juxta-position with the prosecution evidence as he had admitted that on the day of occurrence, after the morning prayer, his father Munsif came out of the mosque and was proceeding on the path leading to his house when Maulvi Azizur Rahman P. W. And Ismail P. W.
Caught hold of Abdul Wahid whom they (accused party) had appointed as Imam and started beating him. Munsif tried to rescue Abdul Wahid whereupon Ismail P. W. Threw a brickbat at the head of his father Munsif hitting him and bringing him down. Ismail also gave another flying brick- bat and was repeating it when he ran and brought the gun Exh. P 3, licensed in the name of his father Munsif, and fired at him which hit the deceased Mahboobur Rahman who had come running to help Muhammad Ismail his father, and was armed with gun Exh. P. 7; that be acted in the exercise his right of private defence of the person of his father and that his father also made a report in the police station Exh. P. W. 4/1.
8. We have examined the prosecution evidence in order to see whether the acquittal of the two accused/respondents has resulted in miscarriage of justice or not. Undoubtedly there are two versions of the occurrence and the prosecution version is not the only version in the case.
Statement of Liaqat at the trial, as reproduced above, would show that both sides had a grievance and at the time of occurrence there was a sudden flare up in which Azizur Rahman and Muhammad Ismail, on the one side, and Munsif and others on the other, started grappling with each other and threw brickbats at one another. This fact finds corroboration from the statement of Dr. Sardar Saeed P. W.
1. He had examined Munsif Khan on 28-12-1975 at 10-55 a. m. And found on his person a lacerated wound l/r x 1/8' x skin deep on the top. Of head 5.1/4" above the left ear and swelling 1" x 1" in front of Injury No. 1 which were caused by blunt weapon. Report made by Munsif is also exhibited by the prosecution as Exh. P. 9/1 which though not admis,ible - as Munsif was neither accused in the case nor a witness - yet the fact remains that a report was lodged by him for the injuries sustained to him by the adversary. Thus, even if we believe the ocular testimony of Ismail and Azizur Rahman it would be a case where anyone of two respondents could have acted in the exercise of his right of private defence of the person of his father.
9. As regards Dilawar that he fired at the deceased Mahboobur Rahman, reasonable doubt has been created by the statement of Liaqat accused. We, therefore, find no merit in this appeal which is, accordingly, dismissed.