1. ' MUHAMMAD HALEEM, C.J. -- The petitioner seeks leave to appeal against the acquittal of respondents, who were tried for causing the deaths of Khuda Dad Khan and Rashid Ahmad by means of fire-arms and causing injuries with Lathis to Mst. Bilqis Begum and her husband Subah Sadiq.
2. ' The incident occurred at 5.30 p.m. On 13-3-1977 while the two deceased, Khuda Dad Khan and Rashid Ahmad, were returning along with Muhammad Riaz, the complainant, Mst. Bilqis and her husband Subah Sadiq, after attending the Khatna ceremony of the son of Mehrban Khan, a brother of the wife of the complainant, in a street in front of the house of Safdar Hussain within the jurisdiction of Police Station Jatli.
3. ' Muhammad Akhtar, who was said to be nursing a grievance against Khuda Dad Khan for his having insulted and slapped his wife Mst. Zetoon Bibi, fired a revovler shot at Khuda Dad Khan which struck him on his head, and as Rashid Ahmad intervened, he was shot at by Ghulam Ahmad, Ali Asghar and Ghulam Murtaza. The two others namely, Mst. Bilqis Begum and Subah Sadiq were given stick blows by Muhammad Hafeez and Muhammad Younas while hiding themselves in a Khola. Muhammad Riaz seeing all this hid himself behind a wall. Khuda Dad Khan expired at the spot, while deceased Rashid Ahmad was taken in an injured condition to the hospital at 8.25 p.m.
4. By Imdad Hussain and Mian Allah Dad, his father. But earlier to it Muhammad Riaz took Mst. Bilqis Begum and her husband Subah Sadiq to the hospital at 7.20 p.m. For treatment.
5. ' From the spot at one place six crime-empties were recovered, but none of them matched with the licensed weapon of Muhammad Akhtar or the weapons seized from Ali Asghar, Ghulam Ahmad and Ghulam Murtaza. The Lathis seized at the behest of Muhammad Hafeez and Muhammad Younas were also not blood-stained.
6. ' Deceased Khuda Dad Khan not only had a fire-arm injury, but also injuries with a blunt weapon of which one needs specific mention and that is, the fracture of his nasal bone. The others were above the nose and two on the left knee. Rashid Ahmad had fire-arm injuries both on the front and back side.
7. ' From the witnesses, cited in the F.I.R. Subah Sadiq, Inayat Hussain and Haq Nawaz were abandoned. Only Muhammad Riaz and Mst. Bilqis Begum were examined in support of the prosecution case.
8. ' While assessing the ocular testimony, the trial Court took into consideration the fact that it was Muhammad Akhtar who had admitted having produced his licensed fire-arm, which distinguished his case from the others qua his culpability. The fact that he was the only assailant was also established, according to the trial Court, as the six empties were found at one place which in all probability showed that there was a single assailant, that is, Muhammad Akhtar, who had emptied his weapon to re-load it. As for the implication of the other three persons armed with fire-arms, the trial Court took the view that they had not taken part in the occurrence as the weapons recovered from them were not established to be crime-weapons. They were, accordingly, falsely implicated.
9. As to the injuries stated to have been caused to Mst. Bilqis Begum and Subah Sadiq, the trial Court held that those implicated for causing them also did not participate as according to Mst. Bilqis Begum she and .Her husband Subah Sadiq took refuge in a Khola and it was there that they were given beating, but no such Khola existed at the spot nor was one pointed out before the preparation of the site plan. In holding so, the trial Court believed in part the defence version that there was a fight over a "spout" between Subah Sadiq, Mst. Bilqis Begum and Khuda Dad Khan on the one side and Muhammad Hafeez, Ghulam Ahmad and Mst. Nazir Begum on the other, in which incident they sustained injuries and so also Khuda Dad Khan, but the trial Court did not believe that Khuda Dad Khan was involved in that fight. This, according to the trial Court, explained the first arrival of these two injured at the hospital accompanied by Muhammad Riaz although in the F.I.R.
10. He stated that he took these two injured and Rashid Ahmad together for treatment. The medico- legal certificates also established this fact as not only two certificates were given to him, but also his name was mentioned as the person who had taken them. Again as the Doctor found the stomachs of the two deceased empty, the trial Court did not believe the prosecution version that the incident occurred while they were returning after attending the Khatna ceremony as in its opinion they would have been offered something, be it food, sweetmeats or drinks, and, accordingly, would not have returned empty-stomach. This obviously showed that the incident must have happened some time later and in a different manner, but not as stated either by the prosecution or the defence. The injuries, accordingly on Mst. Bilqis Begum did not establish her presence at the time of occurrence, as her sparate visit to the hospital reflected that she had suffered them at an earlier time and not in this transaction. As for the injuries attributed with blunt weapon to deceased, Khuda Dad Khan, the trial Court held that they were the result of a fall after sustaining the fatal shot. Accordingly, while acquitting the others, the trial Court convicted Muhammad Akhtar under section 302, P.P.C. On two counts and sentenced him to death on each count. The trial Court also awarded a fine of Rs,10,000 or in default to undergo rigorous imprisonment for two years. The fine, if realised, was ordered to be paid to the legal heirs of both the deceased in equal shares.
11. ' The State preferred an appeal against the acquittal of the other respondents. Muhammad Akhtar filed an appeal against his conviction and so also a reference was made by the trial Court for the confirmation of his death sentence.
12. ' The High Court concurred with the trial Court in holding that the prosecution failed to establish motive. Likewise, the High Court agreed with the trial Court that the weapons recovered from those acquitted did not provide any corroboration and even otherwise their recoveries were also doubtful. The High Court next, upon an appraisal of the evidence, held that the F.I.R. Was lodged at the spot after deliberations and not at the Police Station, Jatli, at 10-30 p.m. In this connection it would be pertinent to refer to the conclusions of the High Court: "All these circumstances taken together go to show that police did get the information of the occurrence much earlier than 9-00 p.m., that the police went to the spot somewhere between mid-night to 3-00 a.m. Next day and the F.I.R. Was recorded after due deliberation and consultation."
13. ' The High Court next took notice of the fact that Muhammad Riaz and Khuda Dad Khan were brothers inter se and that Mst. Bilqis Begum was their sister and further that Rashid Ahmad was not related to Khuda Dad Khan nor was the appellant related to the other acquitted accused although three of them were related inter se and also related to Rashid Ahmad, deceased.
14. ' While evaluating the evidence in this background, the High Court agreed with the opinion of the trial Court that none of the two deceased could have returned after attending the Khatna ceremony without either eating food or sweetmeats as is the custom; and as Mehrban Khan was not examined as a witness the prosecution version appeared to be highly improbable. Next, the High Court took notice of the denial of Muhammad Riaz that he took Mst. Bilqis Begum (P.W.11) and her husband Subah Sadiq to the Gujar Khan Hospital, which in its opinion was a lie as it was evident from the medico-legal certificates that they were brought by Muhammad Riaz to the hospital at 7- 20 p.m. As for deceased Rashid Ahmad there was also evidence to establish that he was taken separately at 8-30 p.m. By two other persons and all this falsified the assertion of Muhammad Riaz that he took all the three together to the hospital. As to his presence, the High Court noticed that Muhammad Riaz had given the wrong locale of the injuries on Rashid Ahmad who was not only shot from in front but also from behind. This was also true qua the injuries inflicted on Mst. Bilqis Begum and Subah Sadiq. The absence of Khola was also regarded as pivotal in disbelieving Mst.
15. Bilqis Begum to have witnessed the occurrence. As both the witnesses had lied as to the roles of the appellant and the acquitted accused in causing the injuries to the two deceased, this was regarded as a material defect in the evidence which went a long way to show that they had not witnessed the occurrence. The High Court further concluded from the post-mortem report that Khuda Dad Khan had met his death not at the stated time but after 8-30 p.m. Which again militated against the truthfulness of the ocular estimony. Finally, the High Court concluded: "That the ocular account is highly unreliable and cannot be accepted with any degree of safety."
16. ' It, accordingly, gave effect to the finding of the trial Court that it was not possible to accept either the defence or the prosecution version.
17. ' As regards the guilt of Muhammad Akhtar there was no distinguishing.Feature as his case was no different from those acquitted. The mere admission of having produced the licensed weapon could not establish that it was a crime-weapon. The trial Court accordingly unduly laid stress on it in holding that he was responsible for causing these murders.
18. ' We have also noticed that deceased Khuda Dad Khan had suffered blunt-weapon injuries, which could not have been the result of a fall as a fracture of the nasal bone nor the injuries on the base of the nose can satisfactorily be explained by fall. The prosecution has failed to explain this injury and so also the other injuries caused with blunt weapon. It may be that he was also involved in the earlier fight and suffered these injuries and was fired at later on, but by whom, the prosecution has failed to establish.
19. We have examined the reasons given by the High Court for acquitting him and for dismissing the acquittal appeal and find no error in the conclusions thereupon reached. The learned counsel was unable to point out any legal error in the appraisal of evidence and all that he contended was-that it was a daylight occurrence and the assailants could not be mistaken for anyone else or substituted. This argument is neither here nor there as it is upon the evidence that a conclusion of guilt or innocence is reached, and if the Courts below were not convinced as to their presence or correctness of the prosecution version, the mere happening of the incident in daylight will be a futile assertion. Here we may point out that the circumstances of the case also showed that the incident had occurred in darkness and not at 5-30 p.m.
20. ' Accordingly, there is no merit in this petition, which is dismissed.