' RUSTAM S.SIDHWA, J.--This is a petition by Maula Dad petitioner seeking leave to appeal against the judgment of a Division Bench of the Lahore High Court, Lahore, dated 28th June, 1987, acquitting Abdul Rashid, respondent from his conviction and sentence under section 302.
2. The brief facts of the case are that Abdul Rashid respondent alongwith Khalid Jamil son of Karam Dad and Kai am Dad son of Ghulam Haider were tried under section 302/34, P.P.C., by the Additional Sessions Judge, Rawalpindi, for the murder of Mohabbat Khan deceased. The learned trial Judge, vide judgment dated 22nd December, 1983, found Abdul Rashid respondent guilty under section 302, P.P.C. And co-accused Karam Dad and Khalid Jamil as innocent. Accordingly, the respondent was sentenced to death and to pay a fine of Rs,25,000 or in default thereof to suffer R.I. For a period of two years. It was further directed that in the event of recovery of fine, Rs,20,000 would be paid as compensation to the heirs of the deceased. Karam Dad and Khalid Jamil were acquitted. The respondent preferred an appeal which was heard by a Division Bench of the Lahore High Court, with the reference submitted by the trial Judge under section 374, Cr.P.C. And the revision petition filed by Maula Dad complainant for the enhancement of the compensation payable under section 544-A, Cr.P.C. A Division Bench of the Lahore High Court, by their judgment dated 28th June, 1987, accepted the appeal of the respondent and set aside his conviction and sentence and rejected the reference and the revision petition. Maula Dad complainant, the present petitioner, now seeks leave to appeal against the said judgment qua Abdul Rashid respondent.
3. The brief facts of the case are that the occurrence in this case took place at about 3-00 p.m. On 21-9-1982, in the area .Of village Bhir Darghi, when Mohabbat Khan deceased, after leaving his cattle for grazing was sitting on a Dheri of earth near Bhir Darghi known as Bhir Mound.
Complainant Muhammad Ashraf was present there also for grazing his cattle. In the meantime all of a sudden from the village side, accused Rashid and his two companions came to the spot.
Accused Rashid and Khalid Jamil were armed with .12 bore single barrel guns, while accused Karam Dad was armed with a pistol. After coming to the spot, accused Khalid Jamil and Karam Dad proclaimed that ,Mohabbat Khan be given the taste of the leadership of the party and he should not go back alive. Accused Rashid fired with his gun, which hit the back of Mohabbat Khan deceased. Mohabbat Khan fell on the ground with his face downward. Thereafter, accused Karam Dad fired with his pistol at Mohabbat Khan. However, the fire hit the left thigh of accused Khalid Jamil. Mohabbat Khan died at the spot. Accused Karam Dad and Rashid carried injured Khalid Jamil towards the village. In the meantime Sher Ahmad resident of Dhabian and Fazal Ellahi resident of Bhir Darghi were attracted to the spot and witnessed the occurrence. They were then by chance passing from there and going towards the village. However, none of them chased the accused, as the accused had warned them not to interfere or follow them. When Muhammad Ashraf, after leaving Sher Ahmad and Fazal Ellahi with the dead body, was coming towards the police post, he heard the report of five or six shots from the village. The motive behind the occurrence was that there were two parties in the village Bhir Darghi who had bitterness and were opposing each other on minor and major matters. Due to this motive, in furtherance of their common intention, the accused had committed the murder of Mohabbat Khan deceased, who was the leader of one of the parties.
4. On 21st September, 1982, Dr.Mehmood Khan M.O., P.W. 8, medically examined Khalid Jamil acquitted accused, and found a fire arm wound of entry 5 c.m. In diameter on the middle of his left thigh.
5. On 22nd September, 1982, Dr.Muhammad Zaman Khan, M.O. P.W. 10, conducted the post-mortem examination on the dead body of Mohabbat Khan deceased and found a fire-arm wound of entry on the back of chest, with burning around the wound. There were five wounds of exit, each 3/4 c.m.
Diameter with everted margins on front of chest right side medial to the right nipple in an area of 6 c.m. x 5 c.m.
6. On 9th November, 1982, the present respondent was arrested. On 11th November, 1982, he led to the recovery of gun P.4 from his house, alongwith four live and three used cartridges.
7. At the trial, the prosecution produced Muhammad Ashraf P.W. 15 to prove the motive, the said Muhammad Ashraf P.W. 15, Fazal Elahi P.W. 16 and Sher Ahmad P.W. 17 in support of the ocular account, Dr.Mahmood Khan P.W. 8 and Dr.Muhammad Zaman Khan P.W. 10 in corroboration of the medical testimony and Muzaffar Khan P.W. 5, Kala Khan P.W. 6, Tanvir Khan P.W. 12, Muhammad Jehangir Khan P.W. 13 and Fazalur Rahman S.I. P.W. 18 in support of the recoveries.
8. Abdul Rashid, present respondent, when examined under section 342, Cr.P.C., denied the charges and stated that he had been falsely implicated because his father Sultan Ahmad had appeared as a witness against the son of the complainant and the deceased.
9. The learned trial Judge found the motive to be proved. He found the ocular account reliable only qua Abdul Rashid respondent and not as against Karam Dad and Khalid Jamil acquitted accused.
He also relied upon the medical testimony and abscondence of Abdul Rashid respondent. He accordingly convicted and sentenced Abdul Rashid respondent, as stated in para 1 above, and acquitted Khalid Jamil and Karam Dad acquitted accused.
10. On appeal by Abdul Rashid respondent, learned Judges of the High Court held, on the strength of the evidence produced as regards motive, that there was enmity between the parties and that the rule of caution required independent corroboration qua the convicted accused to sustain his conviction. Finding no such corroboration from any independent source, and also finding the ocular testimony suffering from inherent contradictions and improbabilities, they acquitted Abdul Rashid, respondent, and rejected the reference sent up by the trial Court and the revision filed by the complainant.
11. On behalf of Maula Dad petitioner it is submitted that even assuming that Muhammad Ashraf P.W. 15 and Fazal Elahi P.W. 16 are held to be related and interested witnesses, Sher Ahmad P.W. 17 being neither related to the deceased nor inimical to the accused party is a disinterested witness and the ocular account, therefore, cannot he rejected. It is further submitted that the medical evidence and the evidence as regards motive and abscondence are sufficient to bring home the conviction to the respondent.
12. On behalf of the respondent and the State it is submitted that the ocular testimony having been disbelieved by both the lower Courts qua Karam Dad and Khalid Jamil, cannot be accepted against Abdul Rashid respondent and in view of the inherent contradictions and improbabilities present in the case, leave in this case should not be granted.
13. With the assistance of the learned counsel for the parties we have gone through the record and have also given our anxious consideration to the arguments addressed by them. The motive in this case stands established, which shows that the Khattars and Awans happened to be pitched against each other. Both the Courts have dealt with this matter at some length and we, therefore, need not repeat the reasons here. This also, strongly establishes enmity between the two groups.
Sher Ahmad P.W. 17 is Khattar by caste. In view of the improbabilities in the ocular account qua Karam Dad and Khalid Jamil acquitted accused, which has already been noted by the two lower Courts, Sher Ahmad P.W. 17 cannot be totally drawn out from the vortex of an interested witness.
The view of the learned Judges of the High Court that independent corroboration was necessary and that motive and abscondence were not sufficient to dispel the doubt, is both reasonable and proper in the circumstances. We do not feel that the learned Judges materially erred in coming to the finding that adequate corroboration was not available against Abdul Rashid respondent. The findings of the two Courts below cannot be said to be either arbitrary or capricious or such as do not satisfy the principles regarding the appreciation of evidence as laid down by this Court. In these circumstances, there being no merit in this petition, the same is dismissed.