1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of judgment of the former High Court of West Pakistan, Peshawar Bench, dismissing an appeal filed by the State against the acquittal of the first respondent herein in respect of a charge under section 302/34, P. P. C. And :a revision filed by the present appellant, who is a brother of the deceased, for the enhancement of the sentence of co-accused Muhammad Zubair from transportation for life to that of death. By the same judgment the appeal of the said Muhammad Zubair, against his conviction under section 302, C. P. C. And sentence of transportation for life, was also dismissed.
2. These proceedings arose out of an incident resulting in the death of one Abdul Aziz, a butcher, which occurred on the 19th of May 1966, at about 9-55 p.m. In Bazar Tingran, Peshawar City, near the shop of a sharbat farosh, Ghulam Sabir, P. W. 10.
3. According to the prosecution, the said Abdul Azia was standing in front of the shop of one Ghulam Sarwar, a vegetable seller, when the two accused, namely, Muhammad Zubair and the respondent Ghularn Sabir, were seen coming though the bazir from the Jehangirpura side with open knives in their hands. They are said to have rushed Lip to Abdul Aziz, and first Muhammad Zubair stabbed him in the abdomen. The respondent Ghulam Sabir also wanted to stab the said Abdul Aziz but was stopped by Jut Majid (C. W. 1) who caught hold of his hand. Sabir, however, managed to free himself from the grip of Abdul Majid and then inflicted an injury on Abdul Aziz with the knife on the dorsal surface of the left hand. Thereafter, both Muhammad Zubair and Ghulam Sabir ran away through Kissa Khgui Bazar, towards Kabuli Gate.
4. The incident was claimed to have been seen by Sadiq A.I alias Baba 14 pan (P. W. 11), Ghulam Sabir sharhar faros/ (P. W. 10) and Abdul Majid (C. W. 1). Majid and Sadiq A.I placed the injured Abdul Aziz in a rickshaw and took him to the Casualty Ward of Lady Reading Hospital, Peshawar, where the injured was examined by 1 yr. 1 post Muhammad Khan (P. W. 11: The latter found one stab wound over the right iliac fossa from which the intestine was protruding out and another over the dorsal surface of the left hand measuring 1" x 1 --x 1/2,". The injury on the iliac fossa was, according to the doctor, sufficient in the ordinary course of nature to cause death.
5. The information of the incident reached Investigating Head Constable Jamroz Khan (P. W. 12) while he was on gasht in ilaga Misgran. He pro--ceeded to the Lady Reading Hospital and recorded the statement of the injured at about 10-30 p.m. At that time, according to this Police Officer as well as the Medical Officer, the injured was in full possession of his senses.
6. The motive, according to this statement, was that Zubair and Sabir were both pickpockets and that Zubair had picked the pocket of one Khadim Hussain, a friend of the said Abdul Aziz. For this he was being prosecuted at that time, and the injured being a friend of the said Khadim Hussain used to accompany him to the Court on each date of hearing of the case.
7. The said Abdul Aziz died some six days later at 7-30 a.m. Of the 25th May 1967, and this statement was treated as his dying declaration.
8. It will be noticed that this dying declaration does not say as to whether the knives held by the two accused were open or not, nor does it say as to whether respondent Ghulam Sabir's first attempt to stab was checked by the intervention of Abdul Majid (C. W. 1).
9. The two accused are neither inter-related nor live in the same Mohallab nor were they co-accused in the case under section 392, P. P. C. In fact Khadim Hussain did not even know the respondent Sabir. Their respective Mohallahs are at a distance of half-a-mile from each other. Nevertheless, it is alleged that they were co-associates and, therefore, had common enmity against the deceased Abdul Aziz.
10. At the trial, Muhammad Zubair admitted his presence but stated that when he was passing through the bazar on his way back from his uncle-in. Law's house in Jehangrrpura, the deceased, on seeing him, taunted him and said pickpocket passive agent is coming". He asked Aziz as to who he meant by that. Upon this the deceased slapped him, picked him up and threw him to the ground. Thereafter the deceased took bottles from the Shop of Ghulam Sabir (P. W. 10) and threw them at him causing him inquires. He then got tip and went away to his house fie did not know as do what happened thereafter or who had stabbed the deceased.
11. He also admitted that he had been convicted by the Magistrate under Section 392, P. P. C. For having robbed Khadim Hussain of his money but on appeal he was acquitted. He, however, denied that the deceased used to accompany the said Khadim Hussain to Court in connection with that case or that lie nourished any grudge against the deceased on that account.
12. So far as the respondent Ghulam Sabir is concerned, he denied that he took any part in this incident at all. In fact, he protested that he knew thing about the incident and had been falsely roped in by Sadiq A.I (P. W. 11) with whom he had enmity. The other witnesses being the friends and associates of Sadiq A.I had deposed against him.
13. The prosecution examined two of the eye-witnesses, namely, Ghulam Sabir (P. W. 10) and Sadiq A.I (P. W. 11) but dropped Abdul Majid on the ground that he had been won over. The Court, however, examined the latter as a Court witness. Ghulam Sabir (P. W. 10) and Sadiq A.I (P. W. 11) did state that both the accused came from Jehangirpura side into the bazar with "open knives" in their hands and attacked the deceased without any provocation from him. They also alleged that the first attempt of respon--dent Ghulam Sabir to attack the deceased was foiled by Abdul Majid, the Court witness, but then he managed to free himself and strike again.
14. The Court witness Abdul Majid did not, however, state that he saw them coming with open knives in their hands. He, in fact, supported the defence that when the accused had come up to a distance of about ten paces from the deceased, it was the latter who taunted them and called there "pickpockets". After this Zubair stabbed Abdul Aziz in the abdomen with a knife and Sabir also wanted to stab the deceased but the witness caught I)old of his hand. Sabir, however, freed himself and managed to stab the deceased on his hand. Then the deceased went to the shop of the sharbat Farosh and tried to pick up bottles. He actually picked up one bottle even after he was injured in the hand by the respondent Sabir and threw the same towards the accused, but it fell on the ground and burst. In cross-examina--petition by the defence, he also added that there was grappling between the accused and the deceased after Zubair had struck the first blow.
15. On this evidence, the trial Court came to the conclusion that the pro--secution had failed to establish that "the accused came after preplanning to commit murder", as they could not have known that Abdul Aziz would be present in his shop in the bazar or near about it at about 9-45 p.m.
16. (His shop is not disclosed on the site plan). It thus appears likely, as stated by Abdul Majid, that the deceased addressed Zubair as a pickpocket as soon as he saw him. The evidence of Khadim Hussain also shows that the case under section 392, P. P. C. Was pending before the appellate Court on the (lay of the occurrence only against Zubair. It may well be that seeing the accused and being a helper of Khadim Hussain, the deceased had taunted him. Zubair was, therefore, convicted under section 302, P. P. C. But, in view of the provocation given by the taunting of the deceased, which led to the unfortunate result, he was given the lesser sentence of transportation for life.
17. As regards the respondent Sabir, the trial Court observed :-- "The fight being sudden I do not think that section 34, P. P. C. Can be applied. Moreover the dying declaration does not say as stated by the witnesses that Sabir accused had tried to stab the deceased, but the blow was warded off and that, therefore, he succeeded only in inflicting injury on the left hand of the deceased. The statements of the witnesses appear to be an exaggeration. I, therefore, hold Sabir accused guilty under section 324, P. P. C."
18. From this judgment Zubair went up in appeal to the High Court against his conviction. The Government appealed against the acquittal of Sabir under section 302/34, P. P. C. And the present appellant went up in revision for the enhancement of the sentence of Zubair. The High Court dismissed all the appeals as well as the revision.
19. The conclusion to which the High Court arrived is as follows :- On a careful review of the evidence, we do not feel inclined to disagree with the appraisement of the learned trial Court that it was not a case of pre-concert and the incident .Was the result of a taunt given by the deceased on seeing Muhammad Zubair that he was a pick--pocket. We are further of the view that the prosecution version that the two accused had drawn knives in their hands appears to be an exaggeration in that if that was so, it is difficult to believe that Abdul Aziz would be rash enough to provoke the two accused by taunting them or Muhammad Zunair appellant alone that he or they were "pickpockets".) Our appraisement of the occurrence is that the deceased met the two accused by chance near the shop of Gulam Sabir (P. W. 10), where the deceased taunted Muhammad Zubair to be a "pickpocket" and as a result of this taunt Muhammad Zubair inflicted a knife blow, and Ghulam Sabir too on his own also inflicted a stab injury, but in absence of any suggestion that he was prompted by Muhammad Zubair, section 34, P.
20. P. C. Would not be attracted and each accused would be responsible for his individual act."
21. Leave was granted in this case only to consider whether in the circum--stances Sabir did not share the common intention with Zubair. The petition as against the latter was dismissed.
22. Learned counsel appearing in support of this appeal has contended that the reasons given by the Courts below were purely conjectural but, having examined the evidence with the assistance of the learned counsel, we have come to the conclusion that, in view of the discrepancy between the evidence of Abdul Majid, the Court witness, and the other eye-witnesses, the Courts below were fully justified in giving preference to the version of the Court witness.
23. The attempt made by the other eye-witnesses Ghulam Sabir (P. W. 10) and Sadiq A.I (P. W. 11) to implicate the respondent Ghulam Sabir under section 34, P. P. C. In the murder of Aziz, by first arming both the accused with open knives and then by trying to make out that Ghulam Sabir succeeded only in the second attempt to hit the deceased on his hand, was clearly not convincing.
24. The story of the accused coming in pre-concert with open knives in their hands to attack the deceased cannot be accepted, firstly, because the accused could not have known that Abdul Aziz would be present in the bazar at, that time of the night and secondly, because, if Abdul Aziz had seen these two coming from Jahangirpura side rated with open knives, he would have made himself scarce and not stopped there to taunt them as pickpockets. Tile open knife story is neither supported by the Court witness nor is it mentioned in the dying declaration. Similarly the story of the repeated attempts made by respondent Sabir is not to be found in the dying declaration. In the circumstances, it cannot be said that the Courts below acted either perverse or purely on conjectures in rejecting the evidence of pre-concert and holding's that the incident had occurred on the spur of the moment when after a chance meeting taunts were thrown out by the deceased himself.
25. Before holding the respondent Ghulam Sabir constructively liable for the murder of Abdul Aziz by the application of section 34, P. P. C., the Courts below were entitled to be satisfied that the evidence of pre-concert was reliable and worthy of credit. It was found for very good reasons, as indicated above, to be lacking in that quality and, therefore, the Courts below rightly came to the conclusion that the respondent Ghulam Sabir could not be made liable under section 34. P. P. C.
26. We see no reason to disagree. No case, in our opinion, for interference by this court has been trade out. We are not satisfied that any case of grave miscarriage of justice has been made out. We accordingly dismiss this appeal.
27. The respondent Ghulam Sabir, who is on bail, will now be discharged from his bail bond.