1. ABDUL QADEER CHAUDHRY, J.---Leave to appeal, has been sought against the judgments of the High Court whereby the respondents were acquitted. Two criminal petitions against acquittal have been filed and this order will dispose of both the matters.
2. The facts, in brief, are that the petitioner/complainant Ghulam Qadir lodged a report against the accused persons alleging therein that his brother Amir Khan was a witness against Abdul Aziz in a case under section 307/148/149, P.P.C. Abdul Aziz asked Amir Khan not to give evidence against him in the said case but Amir Khan did not oblige Abdul Aziz and gave a statement against Abdul Aziz in the aforesaid criminal case. On 20-8-1985 the complainant was present in front of his house alongwith his son Muhammad Tariq (deceased) and real brother Amir Khan. Abdul Aziz, Esab Khan and Muhammad Yousaf came there. Abdul Aziz was armed with .12 bore gun, Esab Khan was armed with a .12 bore gun and Muhammad Yousaf was armed with a pistol. Esab Khan accused raised a lalkara that they would be taught a lesson for giving the evidence against them. The three accused fired at Muhammad Tariq hitting him on his chest and on his both thighs and he fell down on the ground. After usual investigation, the case was put up against the three accused. The learned Additional Sessions Judge vide judgment dated 12-10-1986 acquitted Abdul Aziz and Muhammad Yousuf and convicted Esab Khan and sentenced him to death and fine of Rs.20,000 or in default to undergo three years' R.I. In the judgment of the High Court it is stated that no revision against the acquittal had been filed by the complainant but the learned counsel for the petitioner submitted that the State had not filed an appeal against the acquittal but the complainant had filed a revision petition which was pending in the High Court, Rawalpindi Bench, Rawalpindi. The appeal against conviction was disposed of at the principal seat. After the acceptance of the appeal of Esab Khan, the revision petition was dismissed. In these circumstances, the appeal against the acquittal of respondents Abdul Aziz and Muhammad Yousuf has been filed in this Court. The respondent Esab Khan had been convicted by the learned Additional Sessions Judge as stated above, but on appeal the High Court did not confirm the death sentence and acquitted the respondent Esab Khan. Therefore, the petitioner has also filed petition for leave to appeal against the acquittal of respondent Esab Khan.
2. The learned counsel for the petitioner submitted that the nature of injuries on the person of the deceased shows that there were more than one weapon used. The complainant has specifically attributed the role played by each of the accused and that they were armed with guns and revolver. The eye-witness account was supported by the medical evidence. The three eye- witnesses, namely, Ghulam Qadir, Muhammad Khan and Amir Khan had implicated the accused.
3. The respondent Esab Khan had admitted his presence at the time of the occurrence. As such the prosecution had been able to prove the case against all the accused. The inferences drawn by the Court in acquitting the respondents are not sustainable in law. The acquittal of the respondent Esab Khan by the High Court on the ground that the two of the accused had been acquitted by the trial Court is no ground for giving him the benefit of acquittal. The evidence of eye-witnesses was consistent and therefore even without any corroboration the conviction could be based against the accused persons. The, High Court while accepting the appeal of respondent Esab Khan has observed as follows:-- "We feel persuaded to agree with the learned counsel for the appellant for the reasons that the two co-accused namely Muhammad Yousaf and Abdul Aziz have already been acquitted; that neither the State has filed any appeal against their acquittal nor the complainant has filed any revision against their acquittal; that the motive has been disbelieved by the trial Court; that no crime empty having been recovered from the spot, the gun recovered from the appellant was not sent to the Forensic Science Laboratory for examination and report; that according to the eye-witnesses, Muhammad Yousaf and Abdul Aziz had also fired shots which actually hit the deceased but their statements have been disbelieved to their extent; that it was not the case of the appellant in his statement recorded under section 342, Cr.P.C. That Muhammad Tariq died as a result of the shot fired by him inasmuch as he simply stated that during the cross-firing between him on one side and Muhammad Khan and others, on the other side, Muhammad Tariq happened to come in between and was hit by the firing; that in his statement under section 342, Cr.P.C. The appellant had nowhere stated that Muhammad Tariq had received the shot which was fired by him (appellant). The observation made by the learned trial Court that the fire-arm wound found on the person of Muhammad Tariq was result of one shot is also in conflict with the medical evidence and that there is no corroboration of the partly disbelieved evidence of the two eye-witnesses, qua the appellant."
4. The motive has been disbelieved by the trial Court and High Court and no crime empty had been recovered from the spot and the weapons recovered from the respondents were not sent to the Forensic Expert for examination and report. The eye-witnesses have not been believed by the trial Court. These witnesses had stated that the firing made by all the accused hit the deceased. The High Court has also taken into consideration the statement of the respondent Esab Khan made under section 342, Cr.P.C. According to the respondent, there was a quarrel between the boys. They had exchanged pelting stones and he went from the house to that place and abused Muhammad Khan son of Ali Khan. Thereafter, Muhammad Khan alongwith his relatives came there and started firing at his house. He also started firing from the inside of his house in self-defence and in exchange of such firing, Muhammad Tariq deceased happened to come between the aforesaid persons and was hit by firing. It was by accident. The statement of the accused has to be accepted or rejected in totality. The admission of the accused respondent that he had made firing is not to be read in isolation. He has not stated that the deceased was injured by the firing made by him, therefore, he has not admitted the criminal liability. The supporting evidence has been dis-believed by the trial Court. The eye-witnesses have been disbelieved by the Court in regard to the two accused and the High Court has extended the benefit to the respondent Esab Khan. The re- appraisal of the evidence is not required in this case. The respondents have been acquitted after proper appreciation of the evidence, we, therefore, see no force in. These petitions. The same are dismissed and leave to appeal is refused.