1. MUHAMMAD HALEEMJ.-- Leave is sought against the acquittal of Habib Ahmad by the High Court upon a reference made to it by the trial Court for the confirmation of death sentence. Habib Ahmad had also appealed against his conviction and sentence.
2. Habib Ahmad was tried alongwith Munir Ahmad and Hamid Ahmad for causing the murder of the two deceased Ghani Muhammad and his son Javed Iqbal at morning prayers' time on 1st of September, 1973, while they were asleep in their house in village Sabo Bhadyar, district Sialkot.
3. Muhammad Hussain, the brother-in-law of the deceased Ghani Muhammad claimed to have seen the occurrence and lodged the F.I.R. At 9-00 a.m. On the very day. The other eye-witness was Mst.
4. Sharifan, the widow of the deceased who got up on hearing the gunshot. Habib Ahmad was said to be armed with rifle while the other two were unarmed. All the three were also identified while leaving the house after the commission of the offence by P.W. Safdar.
5. The motive for the occurrence was an old enmity resulting in the murder of Akbar A.I the father of Habib Ahmad in 1967 for which murder the deceased, his father and some others were challaned.
6. The deceased was convicted by the trial Court, but acquitted on appeal. The immediate cause was furnished. By the abduction of Mst. Hanifan in regard to which a report was lodged in which some other persons were named as her abductors. She was recovered from Baluchistan and on her recovery, nine days before the present occurrence, a case was registered against Habib Ahmad and his brother on her statement.
7. Habib Ahmad was, however, allowed bail in that case. Habib Ahmad was arrested after the occurrence on 12th of September, 1973, but no rifle was recovered at his behest. The crime-empties secured could not be wedded.
8. The trial Court while convicting Habib Ahmad accepted the motive and the ocular testimony of these witnesses. However, benefit of doubt was given to Munir Ahmad and Hamid Ahmad and they were unarmed and no overt act was attributed to them. The High Court upon an appraisal of the evidence held, firstly, that it was not established beyond doubt that Muhammad Hussain at the time of occurrence resided with his brother-in-law, the deceased. In this regard, this is what the High Court said: "There is no material worth the name of the record to show that the witness had been residing in this village for the last several years to help Ghani Muhammad deceased for cultivation of lands "
9. Secondly, that three were suspicious circumstances such as the recording of the statement at the bus-stand when a report could have been lodged at the proper time at the Police Station and the despatch of the dead-body so late as before sunset despite the fact that the incident was said to have been reported at 9 o'clock in the morning, which circumstances taken together showed that much time was consumed in ascertaining the identity of the assailants. Thirdly, that from the medical evidence it transpired that four shots were fired. That is, there at Ghani Muhammad and one at his son, but both the eye-witnesses proclaimed that they had heard three shots. Fourthly, the version of these witnesses that the shots were fired while Habib Ahmad was standing towards the feet of the deceased was not consistent with the injuries found on Ghani Muhammad, which were from above-downwards. Fifthly, that it was surprising that the bladder of Ghani Muhammad, deceased, was empty and that of Javed Iqbal, deceased, contained a little urine which factor did not establish the time of occurrence as stated by the witnesses. The incident appeared to have been taken place earlier when it was not possible to fix the identity of the appellant, and, therefore.
10. The time was shifted to morning hours to facilities the identification of the assailants. In this context, the High Court also took note of the fact that no one from the surrounding houses came forward to support the prosecution case as to the time of the incident. Sixthly, the High Court gravely doubted the evidence of Safdar, who was a partisan witness and deeply interested to support the prosecution case. In that light, the High Court held that one piece of tainted evidence could not corroborate another piece of tainted evidence. The High Court also took another reason for rejecting his evidence and that is that Habib Ahmad was not questioned about this piece of evidence when he was examined under section 342, Cr.P. Code. Seventhly, the abscondence was also rejected on the ground that the warrants issued for his arrest were not proved nor evidence was led to establish that he was deliberately avoiding his arrest. In this context, the High Court did not accept the ipsi dixit of Ishtiaq Ahmad Khan (P.W.11), a Sub-Inspector, that legal steps were taken to declare him as an absconder. And, lastly, while accepting the motive the High Court held that though it could not be denied that Mst. Sharifan was in the house nonetheless her testimony and, for that matter, even that of Muhammad Hussain could not be accepted without independent corroboration which was lacking in the case.
11. The learned counsel for the petitioner was not able to show that these conclusions were unwarranted or unrealistic and did not flow from the evidence on record. In this view of the matter, no case is made out for examining the acquittal of Habib Ahmad.
12. Accordingly, leave is refused and the petition is dismissed.