1. MUHAMMAD HALEEM, C.J.--The petitioner assails the acquittal of respondents Munir Shah and Hassan Shah, who, it was alleged, had fired the fatal shots at Mazhar Abbas while he was asleep in the 'Bethak' of his house at 5.30. a.m. On 28th of October, 1979 in village Mauna Thathi, Bala Raja, District Jhang within the jurisdiction of Polio Station, Barana.
2. The statement of Pir Kamal Shah was recorded at 6.30 a.m. Of 28th of October, 1979 while he was proceeding to the Police Station to lodge a report. From the spot to crime-empties of .12 bore were recovered which matched with the shot-guns produced by the respondent while being taken into custody. Besides the respondents, four other persons namely, Riaz Shah, Amir Shah, Muhammad Ali and Nawaz Machhi a servant of the deceased, were also tried but were acquitted by the trial Court.
3. The reason for this murder was that the deceased was said to be having a liaison with Mst. Saffan, a sister of Riaz Shah and that about a year and a few months before the present incident Munir Shah, Hassan Shah and Akram had mounted a murderous assault on the deceased about which incident a case was pending in the Court.
4. The incident was witnessed by Fazal Abbas (P.W. 9) and Muhammad Yar (P.W. 10). The former is the maternal-uncle of the deceased while the latter, who is not related, was a witness in the earlier assault case. None of them were the inmates of the house. Fazal Abbas had his residential house where his family lived while Muhammad Yar had his land at a distance of about a mile from the place of occurrence where he had constructed a residential Dera for himself and his tenants. He was not a permanent resident of this place as his family resided in Sargodha where he had a shop.
5. As for the acquitted accused Nawaz Machhi, he was a servant of the deceased who, it was alleged, had slept in the Dera but on the morning of the incident he had absconded with the licensed gun of the deceased which was lying on his cot leaving the door of the Dera open which on the previous night had been chained from inside.
6. The High Court while appraising the ocular testimony held that there were reasonable grounds for holding that the eye-witnesses had not slept in the Dera, and hence it was an un-witnessed crime.
7. This is what the High Court said about Fazal Abbas: "Fazal Abbas was real maternal-uncle of the deceased. He had his own house consisting of five rooms, a gallery and a verandah in the same village. Fazal Abbas could not give any reasonable explanation as to why he was sleeping in the courtyard of the deceased on the fateful night. He informed the trial Court that there was no special reason for sleeping in the Haveli of the deceased on the night of occurrence. As stated above, he was real maternal-uncle of the deceased. It was not understood as to why he was not sleeping in the Kotha, where the deceased had slept."
8. As for Muhammad Yar (P.W. 10), the doubt as to his presence is expressed as follows: "Muhammad Yar P.W. Admitted that he was originally resident of Chak No. 133/N.B, Police Station Billanwali, District Sargodha. He further admitted that his family resided in his native village. He stated in cross-examination that his land was situated about one mile from the place of occurrence. There, he had constructed a residential Dera for himself and for his tenants. He frankly admitted that his family members were not registered as voters in the village Thatti Bala Raja and their names were entered in the list of voters of Chak No. 133. N.B. This witness had a commission shop at Sargodha but he gave explanation that it was being run by his brother. He was contradicted on this point by Fazal Abbas P.W. Who stated that Muhammad Yar was running a shop of commission agent at Sargodha. He did not state that it was being run by a brother of Muhammad Yar P.W. Like Fazal Abbas, Muhammad Yar also could not explain as to why he was Sleeping in the courtyard of the deceased on the night of occurrence."
9. Pir Kamal Shah was not an eye-witness nonetheless his testimony gave the impression that he was so, but again it transpired from his evidence that it was based on the alleged information given to him by Fazal Abbas (P.W. 9) and Muhammad Yar (P.W. 10). It has, accordingly, no evidentiary value if the persons who had given to him the information were themselves not established to have seen the occurrence.
10. The High Court noticed a further fact that the abscondence of Nawaz Machhi and the theft of the gun was also not mentioned in the F.I.R. Which was a significant feature as that should have been the first thing to be noticed by the witnesses if, at all, they had been there as his absence would have invariably showed his involvement. Again the deceased who had entertained a serious apprehension. About his life so much so that he had kept a gun on his cot would not have left the door open, but the witnesses again testified to its being open which is wholly unbelievable, and intentionally said so to enable them to witness the actual assault.
11. Again the High Court has not accepted the matching of the guns with the crime-empties as it has held that the manner of the production of the guns was highly improbable. Resides the crime- empties were sent alongwith the guns, which in its opinion, also gave the impression that the possibility of planting the wedded crime-empties could not be wholly excluded. No objection could be taken if the High Court had disbelieved the production of guns as not being consistent with the normal human conduct or an impression is gained in the realm of possibility as to the matching of the crime-empties in the facts and circumstances of the case.
12. All these considerations were such which the High Court could take note of and form its own conclusion as to the absence of the witnesses, and so also the dubious way in which the guns were seized. The matter is one of appreciation of evidence, and merely because it had taken a different view from that of the trial Court, it cannot be lightly brushed aside particularly when adequate reasons were given for holding so.
13. In this context, the learned counsel for the petitioner was unable to show any legal defect in the appreciation of the evidence.
14. There is, therefore, no merit in this petition, which is dismissed.