1. ' GHULAM MUJADDID, J.--These two appeals are by leave of this Court. In the former Sher Ahmad has challenged the acquittal of the respondent under section 302, P.P.C. And in the later the acquittal under the Arms Ordinance.
2. ' Sher Ahmad lodged report regarding the murder of his son Riazul Haq at Police Station, Abbottabad Cantt. This occurrence took place on 26-6-1979 at noon time in village Thanda Maira Salhad District Abbottabad. The report was recorded by S.H.O. Qazi Qalandar Khan.
3. ' On the basis of the report Akhtar Zaman was arrested. He was tried by the Additional Sessions Judge, Abbottabad who by judgment, dated 3-8-1980 sentenced him to death and fine of Rs, 5,000 or in default one year R.I.
4. ' Respondent Akhtar Zaman was also tried under the Arms Ordinance. He was found guilty. He was sentenced to one year R.I, and a fine of Rs,1,000, or in default six months S.I.
5. ' The respondent appealed to the Peshawar High Court. Reference for confirmation of death sentence was also forwarded by the trial Court.
6. ' The High Court by judgment dated 15-12-1981 declined to confirm the death sentence; accepted the appeals and acquitted Akhtar Zaman.
7. Leave was granted for re-appraisal of the evidence in order to examine that the reasons given by the High Court were in accordance with the principles pertaining to the administration of criminal justice.
8. ' Motive for the murder was that Akhtar Zaman's father purchased a piece of land from the sister of Sher Ahmad who filed a suit for pre-emption. The accused-respondent was under the impression that Riazul Haq was providing money for the litigation.
9. ' It is alleged by the prosecution that on the day of occurrence, Akhtar Zaman sent for Riazul Haq through Muhammad Ramzan brother of the deceased. When Riazul Haq came out of the house, he was fired at two shots. Riazul Haq was hit and died at the spot.
10. ' The first informant who Iodged the report did not see the occurrence. He was informed by his son Muhammad Ramzan.
11. ' The eye-witnesses in this case are Abdul Majeed, Ghulam Mustafa and Muhammad Ramzan. The rest of the evidence pertains to the motive; recoveries from the spot i.e, blood-stained stones, a snuff box and two empties of .12 bore gun.
12. ' The empties according to the report of Forensic Science Laboratory matched with the gun recovered from respondent Akhtar Zaman. The postmortem report of the deceased was also pressed into service.
13. ' The accused-respondent when examined by the trial Court was about seventeen, eighteen years of age. He was questioned about the pre-emption suit brought by the father of the deceased against his father. He said that he was born in the year 1962 hence he did not understand what the pre-emption suit was. He admitted the factum of litigation between his father and that of the deceased which was going on since long but said that there was no question of his being offended, When he was further questioned about the evidence of Muhammad Ramzan, an eye- witness, he said that he (Ramzan) was a student of 6th class and on the day of occurrence he was expected to be in school; the evidence given by him was concoction. He denied the allegation of firing and the recovery of shot gun from him.
14. ' Abdul Majeed knew respondent Akhtar Zaman, Riazul Haq deceased, Sher Ahmad, Ramzan and Ghulam Mustafa. Sher Ahmad is his relative. When the occurrence took place, he and Ghulam Mustafa were taking the fire wood to the house of Sher Ahmad in connection with Khatam. Riazul Haq deceased was in the house and was about to take his afternoon meal. Time was 12 O'clock.
15. Muhammad Ramzan, younger brother of the deceased came and told the deceased that he was wanted by Akhtar Zaman. Riazul Haq left the house. Muhammad Ramzan followed him. Abdul Majeed and Ghulam Mustafa also followed him. The party was at a distance of about 20, 25 paces whereas Riazul Haq had gone close to the respondent who had a shot gun. He fired two shots at Riazul Haq. Ghulam Mustafa cried. The respondent ran away. Riazul Haq fell down. Muhammad Ramzan fell over him.
16. ' Ghulam Mustafa corroborated the statement of Abdul Majeed. He is nephew and son-in-law of Sher Ahmad. He said that he and Abdul Majeed were taking fire wood to the house of his father-in- law for Khatam-e-Quran. It was noon time. Riazul Haq was about to take his meal. Ramzan came and informed his brother that he was wanted by Akhtar Zaman. Riazul Haq left. He was followed by Ghulam Mustafa, Abdul Majeed and Muhammad Ramzan. It was in their presence that the deceased was fired two shots by the respondent. Riazul Haq fell down. Muhammad Ramzan put his hand on the wound and fell over him.
17. ' Muhammad Ramzan, brother of the deceased, was twelve years old when he gave evidence before the trial Court. At the time of occurrence, he was grazing cattle. Respondent came to the Banna of their field and enquired about his brother. He was told that Riazul Haq was in his house.
18. Muhammad Ramzan was told by the accused-respondent that he should go and fetch his brother.
19. He accordingly went to the house and told his brother who was having his meal. He left the meal, came out of his house and was on his way to the place of occurrence. Muhammad Ramzan followed him. He was about 8/9 paces behind him. He was going through the fields whereas Riazul Haq was walking on the path. Ghulam Mustafa and Abdul Majeed also followed him. There the respondent caught hold of his shot gun lying on the ground. When Riazul Haq arrived there the respondent fired two shots. Both hit Riazul Haq who fell down. Muhammad Ramzan rushed towards him, put his hands on his chest and fell upon him. The accused-respondent took to his heels.
20. Ghulam Mustafa and Abdul Majeed chased him but the respondent managed to escape. On the hue and cry of Muhammad Ramzan many persons came to the spot.
21. ' His father came at about 2 p.m. Whom he told about the occurrence.
22. ' Investigation Officer Syed Nazir Hussain Shah visited the spot. He took into possession blood- stained stones; a snuff box having pellet marks and two empties vide memos. Exh. PW.5/2 and Exh.
23. PW.5/1, respectively.
24. ' Dr. Muhammad Fayyaz conducted the post-mortem examination. He noticed five fire-arm injuries on the dead body of the deceased.
25. ' The doctor noticed some digested food in the stomach. He recovered card-board pieces split into two. He found a bullet lead.
26. ' The doctor was of the view that if one man was responsible for the murder then he must have used two types of weapons i.e, a shot gun and a rifle or a pistol.
27. ' He further deposed that he could not rule out the possibility that more than one persons might be assailants in this case using different weapons.
28. ' Learned counsel for the appellant submitted that the High Court erred in law in rejecting the ocular evidence which was natural, distinterestcd and proved the case against the respondent beyond reasonable doubt. It was argued that the ocular evidence was corroborated by the recoveries and the post-mortem report. According to the learned counsel the acquittal of the respondent resulted in miscarriage of justice.
29. ' Learned counsel for the respondent supported the judgment of the High Court. He submitted that the High Court gave cogent reasons warranted by law and justified according to the evidence. He submitted that the High Court was of the opinion that the prosecution evidence was not worth relying. It was argued that appreciation of evidence was the function of the High Court.
30. ' After re-appraisal of the entire evidence we find that the High Court was not satisfied with the prosecution evidence with the result that the entire evidence was rejected. Starting with the motive and coming up to the ocular version and rest of the evidence, High Court was of the view that the entire evidence was not worth believing.
31. Motive was disbelieved on the ground that it was not strong enough in law for committing the murder of the deceased.
32. ' Ocular evidence was discarded because of material contradictions and that it came in conflict with the medical evidence.
33. ' Muhammad Ramzan, eye-witness, brother of the deceased was disbelieved because his evidence did not inspire confidence. With regard to the remaining two eye-witnesses, High Court was of the view that they had not been able to give satisfactory explanation about their presence at the spot specially when they were of different locality.
34. ' Similarly, evidence pertaining to recoveries and that of the Fire Arms Expert was rejected and finally the medical evidence which according to the opinion of the doctor created grave doubt about the weapon used for the murder.
35. ' For the foregoing reasons, we are of the view that the reasons given by the High Court for acquittal of the respondent are in accordance with the principles laid down for the administration of criminal justice.
36. ' In a judgment of acquittal this Court interferes in exceptional cases when either there is an eror of law or a patent mistake of fact resulting in miscarriage of justice.
37. ' This is not the position in this case. Hence both the appeals are dismissed.