' SAAD SAOOD JAN, J.---Six persons including respondent No,1 were tried by the Additional Sessions Judge at Gujrat on charges under sections 302 and 307 read with section 149 and section 148, Pakistan Penal Code, for causing the death of Abdul Rashid, deceased, making murderous assault upon Muhammad Aslam (P.W.10) and Muhammad Asghar (P.W.12), and rioting. The learned trial Judge acquitted all the accused except respondent No,1. He convicted respondent No,1 on the charge under section 302 and sentenced him to death. He also directed him to pay fine. On appeal and reference, the High Court acquitted him also. Mst. Bashir Begum, widow of the deceased, seeks leave to appeal from the judgment of the High Court against the acquittal of respondent No,1 alone.
2. The parties resided in village Haji Wala within the area of Police Station, Jalalpur Jattan. On account of the elections to the Local Union Council their relations became extremely strained. On the morning of 22-3-1987 the deceased and his uncles, namely, Muhammad Asghar (P.W.12) and Muhammad Aslam (P.W.10), went to Gujrat in connection with a civil suit, not involving respondent No,1. After attending the Court they took a bus for going back to their village. At about 2-00 p.m. The bus stopped at the Kharian Stand in Jalalpur Jattan. Most of the passengers got down. The deceased as well as his two uncles remained seated in the bus.
3. According to the prosecution while the bus was standing at the stop in Jalalpur Jattan, a jeep driven by respondent No,1 arrived there. Respondent No,1 as well as the acquitted accused alighted from the bus. They were all . Armed with guns and rifles. Respondent No,1 raised a Lalkara that no one should escape alive. Immediately thereafter he fired at the deceased who was hit in the chest.
Muhammad Asghar (P.W.12) struck respondent No,1 on the head with an iron rod. There was some more firing by the companions of respondent No,1 as a result of which the deceased, Muhammad Asghar (P.W.12) and Muhammad Aslam (P.W.10) were injured. Respondent No,1 and his companions then drove away. The deceased died at the spot.
4. The occurrence was reported by Muhammad Asghar (P.W.12) at Police Station Jalalpur Jattan, at 2-30 p.m., on the same day. The police station was at a distance of one furlong from the scene of the crime.
5. Respondent No,1 and the co-accused pleaded not guilty at the trial. Respondent No,1 stated that at the relevant time the was standing at the bus' stop when a bus carrying the members of the complainant party arrived there. Muhammad Aslam (P.W.10) was armed with an iron and he struck him on the head for helping the party against which the complainant party was involved in litigation. He was seriously hurt and he was taken to his house. He did not know as to what had happened thereafter.
6. The case of the prosecution against respondent No,1 was founded ,entirely upon the ocular testimony furnished by Muhammad Aslam (P.W.10), Mushtaq Ahmed (P.W.11) and Muhammad Asghar (P.W.12). They all stated that respondent No,1 was one of the persons who had fired at the deceased and the witnesses. The presence of Muhammad Aslam (P.W.10) and. Muhammad Asghar (P.W.12) at the spot at the relevant time cannot be seriously doubted as both were injured during the course of the occurrence. The trial Court examined two Court-witnesses, namely, Muhammad Ashraf (C.W.1) and Muhammad Shafi (C.W.2) who were also stated to have witnessed the occurrence. Neither the prosecution nor the defence regarded them as reliable witnesses. Their statements can therefore, be excluded from consideration.
7. The trial Court did not regard Muhammad Aslam (P.W.10), Musthaq Ahmed (P.W.11) and Muhammad Asghar (P.W.12) as reliable for despite their statements it acquitted five out of six persons put on trial by the prosecution. The High Court rejected their testimony in respect of respondent No,1 as well.
8. In support of this petition it is contended that the presence of injuries on respondent No,1 supported the case of the eye-witnesses and so far as his participation in the occurrence was concerned there could not be any doubt. The reasons given by the High Court for not relying upon this confirmatory piece of evidence are almost non-existent.
9. After hearing the learned counsel for the petitioner we are of the opinion that the grounds upon which the acquittal of respondent No,1 is founded need further consideration. Accordingly leave to appeal is granted, so far as he is concerned. Let bailable warrants in the sum of Rs,25,000 with two sureties in the like amount returnable to District Magistrate, Gujrat, be issued against him.