1. ' NAIMUDDIN, J.--By this petition under Article 185(3) of the Constitution, the petitioner seeks leave to appeal from the judgment of the Lahore High Court, dated 20th April, 1985, whereby the appeal filed by respondent No,1 against his conviction and sentence of life imprisonment under section 302, P.P.C. Was accepted and his conviction and sentence was set aside and the revision filed by the petitioner for enhancement of the sentence awarded to respondent No,1 and acquittal of respondents 2 and 3 by the Additional Sessions Judge, Sargodha, was dismissed.
2. ' Muhammad Ismail son of Said Khan respondent No,1 and Shahadat Khan son of Ahmad Khan respondent No,2 and Riaz Hussain son of Samand Khan respondent No,3 were tried under section 302, P.P.C. Read with section 34, P.P.C. By the Additional Sessions Judge, Sargodha, for the murder of Sultan Ahmad who convicted Muhammad Ismail under section 302, P.P.C. For causing death of Sultan Ahmad and sentenced him to imprisonment for life and a fine of Rs,2,000 in default thereof R.I. For six months with the direction that the fine if recovered be paid to the legal heirs of Sultan Ahmad. The Additional Sessions Judge acquitted respondents 2 and 3 of the charge giving them the benefit of doubt.
3. ' On 15th November, 1982, at 5-00 p.m. Occurrence took place near the village mosque in Chak No,94/NB, which is about 20 kilometres from Police Station Saddar, Sargodha. Ghulam Muhammad brother of the deceased on the same day at about 8.30 p.m. Made a statement.
4. ' (Exh.PA/1) which was recorded by Muhammad Khan, A.S.I. (P.W.6) near Mal-Brow Hotel, Sargodha.
5. On its basis a formal F.I.R. Exh.PA/1 was drawn up by Muhammad Shoaib, Head Constable (P.W.4) at the Police Station, Sargodha, on the same day at about 8.45 p.m. The case was originally registered under section 307/34, P.P.C. But on the death of Sultan Ahmad on 18th November, 1982, it was converted into section 302/34, P.P.C. Respondent No,1 was arrested on 16th November, 1982, by Muhammad Khan A.S.I. (P.W.6) and other respondents were arrested on 17th November, 1982. A carbine was recovered from Muhammad Ismail on 19th November, 1982, in the presence of Gulla and Ghulam Muhammad witnesses.
6. ' The motive alleged by the prosecution was that 14 years prior to the occurrence Sultan Ahmad deceased had killed Sarang brother of Muhammad Ismail who was then and who on attaining age of 15 years he took revenge. It was alleged that Muhammad Ismail respondent No,1 armed with 12 bore gun fired at Sultan Ahmad hitting the back of his chest. Sultan Ahmad fell down. Riaz Hussain respondent No,13 acquitted accused then fired ineffective shots from his 12 bore gun while Shahadat Khan, respondent No,2, who was armed with hatchet raised Lalkara. The occurrence was allegedly witnessed by Gulla, and Allah Box who was not produced by the prosecution as a witness.
7. ' On 19th November, 1982, Muhammad Ismail led to the recovery of carbine Exh.P.3 from his residential Kotha which was taken into possession by Muhammad Khan A.S.I. (P.W.6) vide memo.
8. Exh.P.T. Attested by Ghulam Ahmad brother of the deceased and Gulla (P.W.2). However, no empty was recovered from the spot. According to the Fire Arms Expert the carbine was in the working order.
9. ' On the completion of the investigation respondents 2 and 3 were placed in the column 2 of the challan. The trial Court, however, summoned them and after trying them acquitted them of the charge. Muhammad Khan, A.S.I. (P.W.6) recorded the statement (Exh.PH) under section 161, Cr.P.C.
10. Of Sultan Ahmad on 15 November, 1982. The ocular evidence of the incident was given by Gulla (P.W.2). Ghulam Muhammad (P.W.1) and Gulla (P.W.2) have deposed about the motive. Ghulam Muhammad is also the witness of oral dying declaration made by Sultan A hmad deceased. The trial Court disbelieved the prosecution case, ocular account and dying declaration to the extent of respondents 2 and 3 but relied on the evidence of Ghulam Muhammad (P.W.1) Gulla (P.W.2), dying declaration (Exh.PH) and the recovery of carbine from the respondent No,1 to hold him guilty for the murder of Sultan Ahmad. However, the High Court noted that out of the two eye-witnesses only Gulla was produced and the other eye-witness Allah Bux was not produced. The High Court found Gulla to be a partisan witness in that 1/2 year before this occurrence his brother Sarang was murdered and Sultan Ahmad was a prosecution witness in that case, though he could not appear as a prosecution witness because of his murder but the fact remained that he having made a statement in that case was cited as a prosecution witness. Ghulam Muhammad was considered an interested witness being the brother of the deceased. The High Court was of the view that prudence required independent corroboration of their evidence on material point. As observed by the High Court, their statements had not been acted upon by the trial Court to the extent of respondents 2 and 3. Other factors which influenced the High Court were that Gullah though he claimed to be present on the spot at the time of occurrence was not injured, that the crime empty had not been recovered from the spot and that the mere recovery of carbine from the appellant could not have been used as incriminating circumstances which was of no consequence. The High Court was further of the opinion that the dying declaration (Exh.PH) failed to inspire confidence because it had been partly disbelieved by the trial Court and it does not bear the signature of the doctor, although Muhammad Khan, A.S.I. (PW.6) recorded it in the hospital and because it is almost verbatim copy of the F.I.R. Therefore, in view of these infirmities the High Court did not find it safe to rely on dying declaration or use the same as corroboration of the statement of the partisan witness. The High Court, therefore, gave respondent No,1 also benefit of doubt and acquitted him.
11. The case is one of appreciation of evidence and in doing so, the High Court has not violated any principle of law or appreciation of evidence and therefore the judgment does not call for any interference by this Court. Accordingly leave is refused and the petition dismissed.