' RUSTAM S. SIDHWA, J.---This is a petition by Sultan Ahmad complainant/petitioner seeking leave to appeal against the judgment of a learned Division Bench of Lahore High Court dated 10-2-1990 accepting the appeal of Ghulam Raza and Ghulam Abbas respondents and setting aside their convictions and sentences.
2. The prosecution case as set up at the trial was that on 24-3-1985 at 6-00 a.m. Sultan Ahmad complainant P.W. 7, Dost Muhammad P.W. 11, Muhammad Saeed P.W. And Mian Muhammad P.W.
Were proceeding towards the Dera of Noor Muhammad deceased to attend the Court. When they were at a distance of two Killas from their Dera, they saw Asmatullah, Shera, Ghulam kaza, Ghulam Abbas, Ata Muhammad and Muhammad Aslam accused, all armed with .12 bore guns, giving beating to Muhammad Safdar P.W. With the butt ends of their guns and Allah Din P W running away to save his life. After injuring Muhammad Safdar, P.W., the accused ran towards the Dera of Noor Muhammad deceased. On reaching there, Asmatullah and Shera accused climbed the roof of the Kotha of Noor Muhammad deceased, whereas Ghulam Raza accused lay in a Khal on the back of the Dera. Muhammad Aslam and Ghulam Abbas accused took their positions under the banana plants. Ata Muhammad accused also sat in the Khal. Asmatullah accused raised a Lalkara, whereupon Noor Muhammad deceased came out of his Kotha. Ghulam Abbas and Muhammad Aslam accused fired at him, which gunshots hit Noor Muhammad deceased on his chest. Then Shera accused fired a gunshot at him, which hit him on the left side of his chest. Noor Muhammad deceased also fired in his self-defence. Asmatullah accused fired at Noor Muhammad deceased, which shot hit him on his left side of his chest, whereupon he fell down and died. On hearing the alarm,-Muhammad Ramzan deceased ran to the Dera of Noor Muhammad deceased, when Ghulam Raza respondent fired at him, which shot hit his right thigh, who too fell down and died.
Thereafter Ata Muhammad and other accused fired ineffectively. The accused whilst leaving the spot, carried away the gun of Allah Din (not produced).
3. Khizar Hayat, Inspector P.W. 13 after recording the F.I.R. Exh.P.T. Of Sultan Ahmad P.W.7 proceeded to the spot, where, after preparing the necessary papers he sent the dead bodies of Noor Muhammad and Muhammad Ramzan deceased to the hospital for post-mortem examination and Muhammad Safdar injured P.W. For medical examination. He collected blood-stained earth from the spot where the two deceased had been injured. He recovered .12 bore crime empties Exh. P.12/1- 5, P.13/1-2, P.14/1-3, P.15/1-2, P.16/1-3 and P.17/1-2 from various places, which were taken into possession vide memos. Exhs. P.F., P.G., PH., P.J., PK. And P.L. Respectively.
4. On 24-3-1985 Dr. Mazhar Rashid P.W. 6 conducted the post-mortem examination on Noor Muhammad deceased and found 8 fire-arm wounds of entry 1 cm x 1 cm in an area of 10 cm x 3 cm on the left clavical, two fire-arm wounds of entry 1 c.m. x 1 c.m. Each in an area of 1-1/2 c.m. x 1 c.m.
On the front of middle left chest, four fire-arm wounds of exit 1-1/4 c.m. x 1-1/4 c.m. In an area of 10 c.m. x 1-1/2 c.m. On the back of left side of chest, a laceration 3 c.m. x 1 c.m. Below the left clavical and three abrasions in an area of 4 c.m. x 2 c.m. On front of forehead on the left side. The fire-arm injuries near the left clavical were found to be fatal.
5. The same doctor conducted the post-mortem examination on the dead body of Muhammad Ramzan deceased and found nine fire-arm wounds of entry 1 c.m. x 1 c.m. Each in an area of 10 c.m. x 10 c.m. On the back upper part of right thigh and lower right buttock and a large lacerated wound 3-1/2 c.m. x 3-1/2 c.m. Bone deep on front of right thigh. The fire-arm injury was found to be fatal.
6. The same doctor medically examined Muhammad Safdar injured P.W. And found a contused swelling 5 c.m. x 4 c.m. On the back of left hand and a contusion 10 c.m. x 4 c.m. On front outer side of left thigh, both of which injuries were simple.
7. On 29-3-1985 Muhammad Aslam accused was arrested by Khizar Hayat Inspector P.W.
13.
8. On 3-4-1985 Asmatullah, Sher and Ata Muhammad accused were arrested by Abdul Qadir Inspector P.W.10.
9. On 10-4-1985 Ata Muhammad accused led to the recovery of a carbine Exh. P.10.
10. On 16-4-1985 Ghulam Abbas and Ghulam Raza accused were arrested by Muhammad Rashid C.W.
1.
11. On 18-4-1985 Sher accused led to the recovery of a gun Exhii.11 and on 24-4-1985 Ghulam Abbas and Ghulam Raza accused led to the recovery of guns Exhs. P.19 and P.20 respectively.
12. The learned trial Judge accepted the motive. As regards the ocular testimony furnished by Sultan Ahmad P.W.7 and Dost Muhammad P.W. 11, he held that they were present at the spot and that they did see the occurrence, but being interested and hostile and since a number of accused had been falsely involved, he looked for corroboration, which he found from the recoveries of the guns at the instance of the two rerspondents, which matched with some of the crime empties recovered from the spot. He accordingly convicted and sentenced Ghulam Abbas and Ghulam Raza respondents under section 302/34, P.P.C. For the double murder of the two deceased and under section 307/34, P.P.C. For attempt on the life of Muhammad Safdar P.W.
13. The learned Judges of the High Court rejected the motive on the ground that Exh. P.CC had not adequately been proved. They accepted the fact that the two eye-witnesses were inimical and since they had failed to furnish any plausible explanation of their presence at the spot and they were not residents of the locality, as they were not able to point out the Killa number and square number where they had their respective Deras, they required strong corroboration. It was also observed that the number and nature of injuries given by the witnesses was belied by the medical testimony. In this connection the learned Judge found that as against four gunshots fired by four of the accused at Noor Muhammad deceased, the doctor's testimony showed that the fire-arm injuries were the result of one shot and that whereas the witnesses stated that the gunshots had been fired from some distance, the medical testimony showed blackening around the wounds of entry. As regards corroboration, the learned Judges observed that the factum of the crime empties lying on the spot was not mentioned in the F.I.R., that the recovery of the said crime empties was not proved through independent witnesses and the recovery of guns at the instance of the appellants was also not free from doubt and that the crime empties remained in the police custody for a considerable time. Accordingly the learned Judges acquitted both the respondents.
14. On behalf of the petitioner it is submitted that the learned Judges have thrown out the evidence as regards the motive only on the short ground that document Exh. P.CC. Had not adequately been proved, whereas the testimony of the two eye-witnesses in respect of the motive was totally ignored and not even considered. It is submitted that the enmity between the parties, which the learned Judges have accepted, only flowed out of the story as regards the motive and without accepting the evidence, as regards motive the learned Judges could not have accepted the theory of enmity between the parties. As regards the ocular account it is submitted that Sultan Ahmad P.W. 7 had according to his own statement in cross-examination confirmed that his residence was at a Dera which was at a distance' of about 1-1/2 squares from the place of occurrence, and not 1-1/2 miles as was suggested, and that the Abadi of Pindi Johri was at a distance of 14/2 2 squares from the spot, and not at a distance of two miles as suggested. As regards Dost Muhammad P.W. 11 it is submitted that his Dera was at a distance of 3/4 Killas from the Dera of Noor Muhammad deceased. It is contended that the fact that the witnesses were not able to give the numbers of the Killas or the square in which they had their Deras did not make them false witnesses, because they were squatters on Government lands and according to Dost Muhammad P.W. 11 no Killabandi had been effected and there were no Kishtwari numbers in their area for want of settlement. It is further contended that though the witnesses may have made some mistakes as regards whose shot had hit Noor Muhammad deceased, but the fact remains that the fire-arm entry wounds were 1 c.m. x 1 c.m., which showed that cartridges containing S.G. Or L.G. Pellets had been used and since there were ten fire-arm wounds of entry there were at least two or more shots. As regards the sole fire-arm injury on Muhammad Raza deceased, there is no contradiction that it was by Ghulam Raza respondent. In connection with the distance from which the shots were fired, it is submitted that the medical evidence itself shows that there was a spread which obviously would exclude blackening, and therefore, the evidence of the witnesses that the shots were fired from some distance is correct. As regards corroboration it is submitted that the crime empties were received by the Forensic Science Laboratory on 22-41985, whereas the guns of Ghulam Abbas and Ghulam Raza respondents, were recovered on 24.4-1985 and thus there is adequate corroboration.
15. The submissions made by the learned counsel for the petitioner require examination in order to determine whether the learned Judges of the High Court acted in accordance with the principles laid down by this Court in respect of a proper appraisal and appreciation of the evidence on the record. We would therefore, grant leave in this case. Bailable warrants of arrest for the arrest of respondents in the sum of Rs,50,000 each with two sureties each in the like amount returnable to the Assistant Commissioner, Sargodha, shall issue for the appearance of the respondents in this Court when the appeal comes up for hearing and on each date thereafter to which the same may be adjourned.
Leave to .