' RUSTAM S. SIDHWA, J.---This is a petition by Muhammad Shafi, petitioner, seeking leave to appeal against the judgment of a learned Division Bench of the Lahore High Court dated 27-11-1990 accepting the appeal of Akbar Ali and Asghar Ali, respondents Nos. 1 and 2, and whilst totally acquitting Asghar Ali respondent No,2, convicting Akbar All respondent No,1 under section 304-II, P.P.C. And sentencing him to five years' R.I. With fine of Rs,2,000 or in default thereof to undergo further R.I. For four months.
2. The brief facts of the case are that Safdar Hussain deceased, the nephew of Muhammad Shafi complainant P.W.8, used to sell milk in Lala Musa after purchasing the same from the village. On 13- 11-1985 at 5.00 p.m. Muhammad Shafi complainant P.W.8 had come to Lala Musa to make purchases, where he met Muhammad Ali (given up P.W.) and Safdar Hussain deceased. They had bicycles with them. While leaving for their village Jalal Din, Muhammad Shafi complainant P.W.8 sat with Muhammad All (given up P.W.) on his bicycle. At about 5.00, when they reached near the Dera of Raja Machhi in the area of village Chakou, all of a sudden, Akbar Ali, Asghar All and Muhammad Nawaz, present respondents Nos. 1 to 3, armed with knives, Talib Hussain accused, armed with a .12 bore gun, and Rehmat Khan accused, armed with a revolver, emerged from a cluster of Kikar trees.
Talib Hussain accused fired in the air and raised Lalkara that Safdar Hussain deceased should not be allowed to go alive, whereupon Asghar All respondent stopped the bicycle of Safdar Hussain and inflicted a knife blow on his left ear. The second injury was caused to the deceased by Akbar All respondent on the right side of hack and Muhammad Nawaz respondent caused the third injury on the left side of back of the deceased with his knife. After receiving the injuries, Safdar Hussain deceased fell down on the ground. Thereafter, the three respondents gave more injuries to Safdar Hussain deceased. During this period, Talib Hussain and Rehmat Khan accused continued firing in the air, saying that if any one came near them, he too would be dealt with like Safdar Hussain. On the hue and cry raised by Muhammad Shafi complainant P.W.8 and Muhammad Ali (given up P.W.) and Feroze Ali P.W.9, who was passing nearby, also came there and witnessed the occurrence. The complainant took Safdar Hussain to Lala Musa Hospital, where he died immediately.
3. The motive for the occurrence was that Akbar All respondent suspected Safdar Hussain deceased of having illicit relations with his daughter Mst. Irshad Begum on account of which grudge the respondents and the acquitted accused murdered the deceased.
4. The statement Exh. P.A. Of Muhammad Shafi complainant P.W.8 was recorded by Javed Sarwar A.S.-I., P.W.6 at 10-45 p.m. The same day near the Plywood Factory, Lala Musa. On the basis of the said statement, formal F.I.R. Exh.PA/1 was registered at Police Station Lala Musa by Javed Sarwar A.S.-I., P.W.6. After recording the statement, Javed Sarwar A.S.-I., P.W.6 proceeded to the spot, where, after preparing the necessary papers, he sent the dead body of Safdar Hussain deceased for post- mortem examination.
5. On 14-11-1985 Javed Sarwar A.S.-I. P.W.6 collected blood-stained earth from the spot vide memo Exh.P.G.
6. On 14-11-1985 Dr. Muhammad All Malik P.W.5 performed the autopsy on the dead body of Safdar Hussain deceased and found seventeen incised wounds on different parts of the body, four of which were declared to be sufficient individually and collectively to cause death in the ordinary course of nature.
7. On 26-11-1985 Sh. Farrukh Hussain Inspector PW.10 arrested the respondents and the acquitted accused.
8. On 1-12-1985 Akbar Ali and Asghar Ali respondents led to the recovery of blood-stained Chhurris P.6 and P.7 from a tin box in their home, which was taken into possession vide memo Exhs.P.H and PJ respectively. Muhammad Nawaz respondent also led to the recovery of Chhuri P8, which was taken into possession vide memo Exh.P.K. After completing the investigation, the challan against the accused was sent up.
9. At the trial the prosecution produced Muhammad Shafi complainant P.W.8 to prove the motive, the said witness and Feroze Ali P.W.9 in support of the ocular account, Javed Sarwar A.S.-I. P.W.6, Muhammad Din P.W.7 and Sh. Farrukh Hussain P.W.10 in support of the recoveries and Dr. Muhammad Ali Malik P.W.5 in corroboration of the medical testimony.
10. Akbar Ali respondent, when examined under section 342, Cr.P.C. Denied the prosecution allegations, but admitted the occurrence. His version of the defence is as follows:-- "Safdar Hussain deceased had developed illicit relations with my daughter Irshad Bibi. Twice before the occurrence, I saw them in objectionable condition and each time Safdar Hussain deceased entreated me to spare him and he promised to behave in future and asked for forgiveness. Despite this fact, he did not refrain from carrying on illicit relations with my daughter. I also admonished my daughter, but she also continued carrying out her illicit connections with the deceased. I performed her nikah with Sabir Hussain resident of village and as Sabir Hussain was employed abroad in Kuwait, so I did not send my daughter to her parents in law and she continued to reside with me in my house. On the night of occurrence at 8.00 p.m. In continuation of his illicit relations with Irshad Bibi the deceased took her to the cluster of trees. I was returning from my fields when I passed near the above cluster of trees. I heard voices of whispering from amongt the trees. I noticed that the deceased and my daughter Irshad Bibi were kissing and embracing each other and they were in a compromising position. I felt grave and sudden provocation on account of Gherat. At that time I was carrying a knife for cutting the twigs of trees. I attacked them. They both ran away. Irshad Bibi made good her escape, but I overpowered Safdar Hussain deceased after having chased him and gave him successive blows on his person with my knife. I threw the knife at the spot. The P.Ws were not present at that time nor the other accused were there. Afterwards the complainant party in connivance with the police fabricated a false case and involved me falsely in the case alongwith other co-accused."
11. The learned trial Judge, disbelieving the motive, but relying upon the ocular account, the recoveries and the medical testimony, convicted Akbar Ali and Asghar Ali respondents under section 302/34, P.P.C. But acquitted Muhammad Nawaz respondent and Talib Hussain and Rehmat Khan accused.
12. In appeal, the learned Judges of the High Court, disbelieving the motive, the ocular account and the recoveries, acquitted Asghar Ali respondent, but convicted Akbar Ali respondent under section 30441, P.P.C. On the basis of his own admission.
13. Muhammad Shafi petitioner seeks leave to appeal against the acquittal of Akbar Ali, Asghar Ali and Muhammad Nawaz respondents.
14. On behalf of the petitioner it is submitted that the evidence as regards the motive furnished by Muhammad Shafi P.W.8, the ocular account as furnished by Muhammad Shafi P.W.8, and Feroze Ali P.W.9, the evidence of recoveries as furnished by Javed Sarwar A.S.-I. P.W.6, Muhammad Din P.W.7 and Sh. Farrukh Hussain Inspector P.W.10 and the evidence as regards medical testimony furnished by Dr. Muhammad Ali Malik, P.W.5, conclusively show that at least Akbar Ali, Asghar Ali and Muhammad Nawaz respondents were responsible for seventeen incised knife injuries on the deceased and the question that any of the witnesses were chance witnesses does not arise.
15. We have given our anxious consideration to the arguments advanced by the learend counsel for the petitioner, but regret that we cannot accept the same. The learned Judges of the High Court found that the FIR was recorded after preliminary investigation. The learned Judges also found, on the basis of the evidence on the record, the surrounding circumstances and inferences which could fairly be drawn therefrom, that Muhammad Shafi P.W.8 and Feroze All P.W.9 were chance witnesses and that the explanations offered by them for being present at the spot were neither reasonable nor plausible and that as no empty vessels in which milk could be stored nor the deceased's cycle were taken into possession, the same belied the prosecution case that the deceased was returning home after having sold milk in the village. The learned Judges also found that the recovery of the crime empties at the instance of the respondents was not proved beyond reasonable doubt, as Muhammad Din P.W.7 was closely related to the deceased and was not a respectable resident of the locality from where the incriminating articles were recovered and it was higly improbable that the respondents would have kept these incriminating articles in their home for such a length of time so as to present them to the police.
16. The learned counsel for the petitioner has not been able to show that the findings recorded by the learned Judges are such as no reasonable Judges in similar circumstances would have come to. The mere fact that another opinion can be formed in respect of certain matters found by the Judges, doer not by itself give the petitioner any right to seek leave to appeal against acquittal. In these circumstances, the petitioner has not made out a case for grant of leave.
17. For the foregoing reasons, there being no merit in this petition, the same is dismissed and leave is refused.