1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from the judgment and order of a Division Bench of the Lahore High Court, setting aside the conviction of the respondent Muhammad Ashraf under section 302 of the Pakistan Penal Code and acquitting him.
2. The case against the said respondent was that on the 9th of November 1965 at about 7-45 p.m. He was lying in ambush with his brother Nazir in a sugarcane field in Chak No. 205/R. B., District Lyallpur, and that when the petitioner passed along the track between the fields driving his tractor towards the Chak with Ikhlaq, deceased, and Muhammad Ashraf, a first cousin, Nazir, the brother of the respondent, fired from a gun at the tractor with a view to kill Mumtaz, but the shot hit Ikhlaq, who was sitting on the mudguards, on the buttocks. The deceased fell on the plough attached to the tractor and Mumtaz drove his tractor at a very fast speed towards his dera where the deceased succumbed to his injuries.
3. The first information report was lodged the same -night at about 9-30 p.m. By Mumtaz (P. W. 13) at bridge Zakbirawala where the Sub-Inspector of Police was found to be present on patrol duty. It was registered at the police station at about 11 p.m. Mumtaz (P. W. 13) was on his way to the police station on a car when he met the Police Officer on the bridge. The Zakhirawala bridge is about half way between the place of occurrence and the police station which is six miles away from the place of occurrence.
4. Nazir, the brother of the respondent, was never arrested. He met a violent death 3 or 4 months after the incident. The respondent was arrested by a nakabandi party, in the area of Chak No. 215, on the 9th of January 19-66, and a gun and six live cartridges were recovered from him. Two empty cartridges were also seized as the respondent is said to have fired two shots while resisting arrest.
5. The Police Officer visited the place of occurrence on the morning of the 10th of November 1965 along with a tracker. The foot-prints of two persons were seized from the place, one of a person wearing a gurgabi and the other of a club-footed person without any shoes. The latter was alleged to be that of the respondent but the tracker was unable to identify the same before the committing Magistrate.
6. One empty cartridge was also seized from the spot and this was sent to the Forensic Laboratory as early as the 15th of November 1965. Subsequently it was found by the Ballistic Expert to have been used in the gun seized from the respondent on the 9th of January 1966.
7. The eye-witness account was furnished in this case by Mumtaz (P. W. 13) and Muhammad Ashraf (P. W. 14). They claimed to have recognised the respondent in the light of the tractor's headlight, from a distance of 7 or 8 karams.
8. The trial Court accepted this evidence and convicted the respondent, but the High Court totally disbelieved the prosecution story. It did not accept that the first information report was lodged either at the time or in the manner alleged by the prosecution. It did not accept the story of identification, because, then, it would not have been necessary for the Police Officer to take a tracker along with him to examine the foot--prints. The story of a shot being fired while the deceased and the witness were passing along the pathway on the tractor was also disbelieved, because, no pellet marks were found on the tractor and only six pellets were found to have entered the body of the deceased. The High Court also doubted that the incident took lace at the place alleged, because, there was no trail of blood from the alleged place of occurrence to the dera of Mumtaz.
9. The evidence regarding the recovery of the gun was also disbelieved as the respondent had been acquitted in the case started under the Arms Act for possession of an unlicenced weapon.
10. The complainant now seeks special leave to appeal, and on his behalf great reliance has been placed on the matching of the empty recovered from the place of occurrence with the gun recovered from the respondent at the time of his arrest on the 9th of January 1966. But, as the High Court has rightly pointed out, this recovery does not implicate the respondent; nor does it establish that he was present at the time of the incident along with his brother Nazir who is alleged to have fired the fatal shot.
11. The reasons given by the High Court for giving the benefit of, doubt to the respondent appear to us to be cogent and valid ad they do raise a serious doubt as to the implication of the respondent in the incident.
12. Learned counsel appearing for the State also agrees that the case of the respondent, is not free from doubt. In the circumstances, we see no sufficient reason to interfere in this matter. We are not in a position to say that the reasons given by the High Court are either perverse or insubstantial.
13. This petition is accordingly dismissed.