1. HAMOODUR RAHMAN, G. J.-The respondents 1 and 2, who are brothers, were tried alongwith their cousin Shah Nawaz for the murder of one Mehar Dad under section 302/34, Pakistan Penal Code, by the Sessions Judge, Mianwali. He acquitted Shah Nawaz but convicted the above-mentioned respondents and sentenced each of them to death.
2. On appeal and reference, a Division Bench of the Lahore High Court allowed the appeal, set aside the convictions and sentences and refused to confirm the death sentences.
3. The brother of the deceased has now come up for special leave to appeal.
4. According to the prosecution itself, the murder was the result of a vendetta for the earlier murder of one Rafiullah, a first cousin of the respondents. The parties are inter-related, but there has been old-standing enmity between them, as a result of which there have been litigations, both civil and criminal, and the previous murder, for which both the deceased and his brother (the petitioner herein) were sentenced to life imprisonment by the trial Court. Their appeal was pending in the High Court and they were on bail when the present incident took place.
5. On the 2nd of December 1968, they had gone to the cattle fair held at Kamar Mashani with a view to make purchases. The deceased was a little ahead of the rest of his party, and as he reached the shops close to the mosque in the cattle-fair, the respondents and the acquitted accused, armed with pistols, suddenly emerged from the shops, raised a lalkara and opened fire on the deceased who was the person actually looking after the appeal pending in the High Court. The deceased expired soon after. The present petitioner then lodged the first information report at Police-Station Kamar Mashani, which was at a distance of three furlongs from the place, at 12-30 p.m.
6. There is no doubt that the deceased met his death at the place alleged by the prosecution and at or about the time alleged by it. This is established by the prompt reporting of the first information, the recovery of blood-stained earth and the dead body from the place of the incident.
7. The respondents were arrested within two days on the 4th of December 1968, and their respective weapons were recovered at their instance, but as no crime empty was recovered from the spot, the recoveries of the weapons were not of any use.
8. The medical evidence is unfortunately not very clear, although the doctor had found five inlet wounds on the deceased and he had also, on the query of the Police, given the opinion that the injuries were caused as a result of five shots from a 12-bore weapon, he could not exclude the possibility of all the five injuries being caused by four shots.
9. One of the wounds he had described in his report as a gaping wound and in examination-in chief he explained that this gaping wound could have been inflicted by a sharp-edged weapon, parti-- cularly since he could not find any pellets underneath the said wound. It was, however, elicited in cross-examination that he had only two years' experience in the Medical profession and that he was not a Fire-Arms Expert.
10. Apart from this, the prosecution case rested on the oral testimony. This was furnished by the brother of the deceased, the present petitioner (P. W. 6), and one Ghulam Rasul (P. W. 7), a brother- in-law of Karam Dad (P. W. 6), who had also stood surety for the deceased in certain security proceedings and in the High Court for the bail granted to the present petitioner. In these circumstances, the High Court felt that such interested evidence, could not be accepted unless corroborated by some other independent circumstance. Such corroboration was not only missing but the oral testimony was found to be in conflict with the medical evidence. Furthermore the acquittal of Shah Nawaz, who had been shown in column 2 in the F. I. R. And the trial Court had acquitted him on the ground that he was not present at the time of the incident in the locality, showed that the witnesses had actually falsely implicated an innocent person. The latter was a school teacher and it was proved that he had not been granted any leave during this period.
11. The fact that the incident took place in a busy market like the cattle-fair where hundreds of persons must have been present also made it difficult to appreciate as to why no independent evidence could be procured. This was by itself a very suspicious circum--stance.
12. Learned counsel appearing in support of this petition has tried to contend that the reasons given by the High Court for the acquittal are purely conjectural, but he has not been able to shoe us that any one of the reasons given by that High Court with regard to the infirmities in the prosecution evidence was based on either a misreading of the evidence or non-consideration of material evidence.
13. In fact, having seen the evidence on the record; we are satisfied that the caution exercised by the High Court was in every way justified and that the prosecution evidence did suffer from serious infirmities. The accused were, therefore, clearly entitled to the benefit of all the doubts created by these infirmities. The reasons given by the High Court are, in our opinion, cogent and substantial.
14. We see no reason, therefore, to interfere.
15. This petition is, accordingly, dismissed.