' NAIMUDDIN, J.--By this petition through jail, the petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 5-5-1986 whereby his appeal against his conviction and sentence of death with fine under section 302, P.P.0 was dismissed and the death sentence was confirmed upon a reference made by the Additional Sessions Judge, Mianwali under section 374, Cr.P.C.
2. The brief facts, relevant for the purpose of this petition according to the F.I.R. Are that the petitioner fired first shot at Zahir Shah (deceased) on the left side of his head, second shot at Gulband Khan (deceased) on the left side of his chest which came out from the right side of his flank and third shot at Abdul Baqi Shah (deceased) below his right shoulder while they had come to his house for thanks giving and prayers after having their meals at the house of one Nausher Din.
The occurrence was witnessed besides Muhammad Khan (PW 9) by Nawab Khan (PW.10) and Abdul Manan (not produced). However, no crime empty was picked up from the spot.
Subsequently at the instance of the petitioner a .12 bore gun Ex.P.1 was recovered alongwith 18 live cartridges (Exh.P.2/1-18) and 7 empties (Exh.P.3/1-7) as well as bandolier (Exh.P.4), which were taken into possession vide Memo. Exh.P.L. Dated 6-12-1979.
3. The petitioner, in his statement before the trial Court, denied to have participated in the occurrence. He disowned the recoveries and claimed that he had been falsely implicated due to enmity. He stated that Abdul Baqi Shah deceased was his Pir and he (petitioner) was in his service who had collected a large sum of money from his Murids and while crossing Chanchali brook canal he was waylaid by the dacoits who looted him and on the resistence thay murdered the three deceased from a very close range but the place of occurrence was shifted upon him falsely due to enmity of the prosecution witnesses. He further claimed that none of the prosecution witnesses was present at the time of occurrence. In support of his case, he examined S.I. Nazar Hussain, D.W.I and placed on record judgments of 1962 and 1964 Exh. D.C. And Exh. D.D. To prove that there existed enmity between the petitioner and the P.Ws.
4. Dr. Muhammad Mushtaq Ahmad PW 1 conducted post-mortem examination on the dead body of Gulband Khan deceased on 5-12-1979 at 8-00 a.m. And found on his person three injuries caused by fire-arm with exit wounds. On the same day at 9-30 a.m. He conducted post-mortem examination on the dead body of Zahir Shah deceased and found on his person four fire-arm injuries and first of them, according to him, was sufficient to cause death in the ordinary course of nature. Then on the same day at 10-30 a.m., he conducted post-mortem examination on the dead body of Abdul Baqi Shah deceased and found on his person 14 fire-arm wounds of entry and exit.
5. However, the petitioner was found guilty and convicted under section 302, P.P.C. And sentenced to death and fine by the Additional Sessions Judge, Mianwali. The appeal of the petitioner was dismissed by the High Court as per impugned judgment as stated before giving rise to this petition.
6. The High Court, however, found that the recovery of .12 bore gun had no corroborative value as no crime empty was recovered from the spot but did not accept the defence version because it was not proved. As regards the motive, it was held by the High Court that record showed enmity between the petitioner and Zahir Shah deceased as grandfather of the petitioner was murdered by the grandfather of Zahir Shah deceased.
7. But the question is whether the prosecution had proved its case beyond reasonable doubt against the petitioner because in the F.I.R. The motive alleged was wrongful possession of the petitioner over land of Zahir Shah deceased. On the other hand the petitioner had been able, by production of copies of two judgments Exh. D.C. And Exh. D.D., to prove his enmity with the P.Ws. But the High Court has not given any finding on the motive as alleged in the F.I.R. Further in the F.I.R., the petitioner is alleged to have fired one shot each at the three deceased while the medical evidence shows a number of injuries on the persons of each of the three deceased which lends support to the defence version that the deceased were fired at by more than one person and according to the petitioner by the dacoits.
8. All the above aspects among others require consideration. I would therefore, grant leave to appeal.
' NASIM HASAN SHAH, J.--I agree.
' ORDER OF THE COURT ' Leave is granted.