' MUHAMMAD RAFIQ TARAR, J.----This appeal by leave is directed against the judgment of a learned Division Bench of the Lahore High Court whereby Criminal Appeal No, 176/1987 filed by Muhammad Riaz respondent challenging his conviction under section 302, P.P.C. Carrying death sentence and a fine of Rs,1,000 for him, recorded by a learned Sessions Judge, was allowed and he was acquitted of the charge.
2. The F.I.R. Version of the occurrence was that on the night between 22/23rd April, 1986 Ahmed complainant, his brother Naurang Sher deceased and latter's widow Mst Dullan appellant herein were sleeping in the courtyard of their Dhari situate in the land of the complainant outside the village Abadi. As about 2-00 a.m. The complianant and Mst. Dullan woke up on hearing the noise of a barking dog. In the meantime Riaz respondent armed with a gun entered the courtyard, fired at Naurang Sher hitting his right flank and declared that he had given the land to him (the deceased).
The complainant and Mst. Dullan saw the occurrence and identified the respondent in the light of a burning lantern which had been kept in the courtyard. On their alarm Haitam P.W. And Nawab (not produced) also reached the spot. The complainant, Haitam and Nawab chased the appellant but he escaped and fled away on a motorcyle which he had already parked at some distance from the Dhari, The P.Ws. Carried the injured toward Civil Hospital, Kamalie but he expired on the way.
' The motive alleged in the FIR, was that 15/16 years prior to the occurrence Mudaee, the father of the complainant and the deceased, had purchased 5 acres of land from one Ahmed son of Walya.
Mudaee had 8 sons including Muhammad father of the respondent .Who sold land measuring '5 Kanals out of the said land without the permission of his father to one Waryam for a sum of Rs,2.500 Later on Mudaee obtained the said land from Waryam by paying him Rs,2,500. The appellant used to demand the share of his father from his uncle Naurang Sher deceased but he declined to oblige him over which he got annoyed.
3. The respondent pleaded not guilty to the charge and denied the prosecution allegations against him. He stated that the deceased who was a professional thief was murdered by some unknown persons and he was falsely implicated due 'o enmity. No evidence was led in defence.
4. In support of its case the prosecution examined three eye-witnesses namely Ahmed complainant, Mst. Dullan P.W.5 and Haitam P.W.6. The prosecution also relied on the evidence relating to motive and recovery.
5. On re-examining the evidence the learned Judges of the High Court came to the conclusion that the land in dispute, if any, "could be a motive both ways, i.e, for commission of murder by the appellant and for false involvement of the appellant by Mst. Dullan and complainant" who were inimical towards him. They further observed that though the accused was the son of the real brother of the complainant, the parties had strained relations because the father of the accused had got a case of abduction registered against the complainant, his two brothers, two women relatives and Habib P.W. Of this case and they remained in jail for two/three months in the said case. It was further observed that if the complainant and Mst. Dullan could have woken up on hearing the noise of barking dogs and other witnesses could have reached the spot on hearing the alarm of the complainant and Mst. Dullan, how the deceased could have kept on sleeping till the infliction of the fatal injury. The learned Judges did not believe the recovery of crime empty from the spot because of widely discrepant statements made by the Investigating Officer and Ahmed complainant who was held to be an interested witness. They found weight in the arguments of the learned counsel for the appellant (respondent herein) that since the empty and the gun remained with the police together, the possibility of "the substitution of the crime empty" could not be ruled out 2, Learned counsel for the appellant submits that the High Court has rejected the prosecution evidence for insufficient reasons. It is submitted that it being the case of a single accused, there was no earthly reason for the eyewitnesses to substitute the respondent for the real culprit. The learned counsel for the respondent has supported the judgment of the High Court for the reasons mentioned therein.
7. After considering the submissions of the learned counsel for the parties we find that there is no legal error u the appraisement of evidence by the High Court and the findings recorded in the impugned judgment have the support of evidence. Although the eye-witnesses were also related to the appellant but that fact would not take them out of the category of interested witnesses for the reason that they were inimical towards him. Ahmed complainant admitted that father of the appellant got a case registered against him, his brothers and two female relatives for the abduction of Mst. Sahib Bibi. They were arrested in the said case and later on released on bail after two/three months: Mst. Dullan admitted that she was annoyed with the appellant due to his pressing demand for the share of the land. Haitum P.W. Is the nephew of Mst Dullan. He claims to have seen the appellant going towards the place of occurrence but he neither ran towards him to apprehend him nor raised alarm on seeing him going towards the deceased. Such unnatural conduct speaks volumes about his presence at the spot.
8. Admittedly the occurrence took place during the night. The deceased had only one fire-arm wound on his person which would show that the occurrence was over in the twinkling of an eye.
This, on the face of it, appears to be a case of 'hit and run'. The presence of burning lantern at the spot appears to be doubtful. Haitum P.W. Did not state that any lantern was burning there. Mst.
Dullan stated that a lantern was burning at the spot but she was confronted with her statement before the police wherein it was not so recorded. The conditions laid down by this Court in Ghulam Sikandar's case (PLD 1985 Supreme Court 11) for interference with an order of acquittal are not satisfied in this case.
9. For the foregoing reasons we see no ground for interference with the order of acquittal recorded by the High Court. The appeal is, therefore, dismissed.