' MITHAMMAD MUNIR KHAN, J.---These two Petitions for Leave to Appeal No,280-L of 1994 and 324-L of 1994 are directed against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 10-7-1994 passed in Criminal Appeal No,50 of 1992/BWP. We propose to dispose them of through single judgment.
2. In the incident which took place on 19-8-1989, at Maghribwela near the house of Muhammad Arshad deceased in village Farid Abad, Tehsil Khanpur, Mukhtar Ahmed and Muhammad Akram petitioners in Cr.P.LA. No,324-L/1994 armed with hatchets, Mushtaq Ahmed and Fida Hussain respondents Nos.3 and 4 in Cr.P.LA. No,280-L/1994 armed with daggers, alongwith six others namely, Habib Khan, Faiz Muhammad, Shah Muhammad, Atta Muhammad, Ghaus Bakhsh and Siraj Ahmed all armed with Sotis launched murderous assault on Muhammad Arshad and injured him in the presence of Rafiq Ahmed P.W.2, Muhammad Ahsan P.W.3, Fazal Ahmad P.W. (not produced) and Abdur Rahim P.W. (not produced), on account of suspicion of his illicit relations with Mst. Amina sister of Mukhtar Ahmed. According to the prosecution, Muhammad Akram, Mukhtar Ahmad, Mushtaq Ahmed and Fida Hussain caused injuries with their weapons on the left leg, right wrist, left arm and head of Muhammad Arshad, respectively. The F.I.R. Exh.PJ was lodged by Rafiq Ahmed P.W.2 brother of the deceased on 19-8-1989 at 8-30 p.m. At Police Station Zahir Peer, District Rahimyar Khan and was recorded by Muhammad Arshad A.S.I. P.W.9. Muhammad Arshad in injured condition was removed to the hospital where he was examined by Dr. Muhammad Mansha P.W.7 on the same day. The Doctor found as many as seven incised wounds on different parts of his body. Muhammad Arshad died in the hospital on 7-9-1989 and post-mortem examination was conducted by Dr. Muhammad Rafiq Shahid P.W.10 on 8-9-1989 at 8-00 a.m. He found seven injuries on different parts of the dead body which were caused by sharp-edged weapon. In his opinion the death was due to gangrene as a result of the injuries.
3. Mukhtar Ahmed and Muhammad Akram were arrested on 23-8-1989 by Muhammad Arshad ASI P.W.9. Mushtaq Ahmed and Fida Hussain were arrested on 3-9-1989 by the same police official. On 26-8-1989, Mukhtar Ahmed got recovered his blood-stained Chaddar P.9, shirt P.10 and bloodstained hatchet P.11. Muhammad Akram got recovered blood-stained Shalwar P.12, shirt P.13 and hatchet P.14 in presence of Muhammad Ahsan P.W.3 and Muhammad Arshad ASI P.W.9. On 13- 9-1989, Mushtaq Ahmed and Fida Hussain got recovered dagger P.1 and dagger P.2 respectively in the presence of Haji Ahmed Bakhsh P.W.1 and Muhammad Younas ASI P.W.B. According to the Serologist's report, the clothes and the weapons recovered from Mukhtar Ahmed and Muhammad Akram were stained with blood.
4. When examined under section 342, Cr.P.C., the appellants, while admitting to have caused the death of Muhammad Arshad pleaded grave and sudden provocation. In reply to question No,9, Mukhtar Ahmed stated:-- "Mst. Amna is my real sister, who is aged about 17/18 years. On the day of occurrence, I alongwith my cousin Muhammad Akram co-accused was going to my house. When we reached to the thickly grown Mango garden belonging to Mahmoodul Hassan situated in Killa ' No,16 of rectangle No,353/12, we heard whispering and went inside the garden where we found my sister Amna and Muhammad Arshad (deceased) embracing and kissing with each other. This highly provoked me. I lost my self-control and balance of mind and under the grave and sudden provocation, I caused injuries to Muhammad Arshad (deceased) with my hatchet which I was holding at that time. Muhammad Akram also caused injuries to Muhammad Arshad with his hatchet. My sister Mst. Amna ran away and hide herself somewhere and could not be traced by us.
The complainant and P.Ws. Were not present there at that time. None of the remaining accused had taken any part in this occurrence and they have been falsely involved due to their close relationship with me and my co-accused Muhammad Akram. Just after the occurrence, Muhammad Akram and myself went to the Police Station Zahir Peer and narrated the above facts and produced our hatchets and our blood-stained clothes before the police. The local police has twisted story in connivance with the complainant party. The P.Ws. Have falsely deposed against me to support their concocted story."
' Muhammad Akram made similar statement. They neither produced evidence in defence nor gave evidence on oath in disproof of the charge against them.
5. The Additional Sessions Judge Rahimyar Khan, vide his judgment dated 13-5-1992 while acquitting the six co-accused convicted Mukhtar Ahmed, Muhammad Akram, Fida Hussain and Mushtaq Ahmed under section 302/342, P.P.C., and sentenced them to imprisonment for life, and a fine of Rs,15,000 each or in default three years' R.I. Each. On appeal filed by the convicts, the Lahore High Court, Bahawalpur Bench, Bahawalpur, vide judgment dated 10-7-1994 acquitted Mushtaq Ahmed and Fida Hussain but maintained the conviction and sentence of Mukhtar Ahmed and Muhammad Akram. Giving reasons for the acquittal of Mushtaq Ahmed and Fida Hussain, the High Court in paragraph 15 of the judgment has stated:- "No doubt P.Ws.2 and 3, eye-witnesses, specifically named Mushtaq Ahmed and Fida Hussain as the assailants, but in view of the statement of Dr. Muhammad Mansha (P.W.7) and the alleged recovery of crime weapons at their instance after such a long period proves otherwise, and I am of the view that their participation in the offence is doubtful, and giving them benefit of doubt, they are acquitted of the charge."
' Believing the ocular evidence and disbelieving the plea of grave and sudden provocation taken by the accused/petitioners, the High Court has upheld their conviction and sentence. Feeling aggrieved thereby, Mukhtar Ahmed and Muhammad Akram have filed Petition for Leave to Appeal No,324-L of 1994 against conviction and Rafique Ahmed has filed Petition for Leave to Appeal No,280-L of 1994 against the acquittal of Mushtaq Ahmed and Fida Hussain and for the enhancement of the sentence of Mukhtar Ahmed and Muhammad Akram.
6. Learned counsel for the petitioners in Criminal Petition for Leave to Appeal No,324-L of 1994 has argued that the High Court has failed to appreciate the case of the two versions in accordance with the guideline given by the superior Courts; that Rafique and Muhammad Ahsan being closely related to the deceased are not dependable witnesses; that they were not present on the spot at the time of occurrence; and that the occurrence actually took place in the manner stated by the petitioners and as such conviction and sentence under section 302/34, P.P.C., cannot be sustained.
' Conversely, learned counsel for the petitioners in Criminal Petition for Leave to Appeal No,280-L of 1994 has argued that the prosecution has successfully brought home guilt to Mushtaq and Fida Hussain as well; that Rafique Ahmed and Muhammad Ahsan eye-witnesses are quite dependable; that they have given plausible cause of their presence on the spot at the time of occurrence; that they have no motive to falsely implicate the accused or concoct false story against them and that the reasons given by the High Court in support of the acquittal of Mushtaq Ahmed and Fida Hussain are neither sound nor convincing.
7. Taking the petition against acquittal of Mushtaq Ahmed and Fida Hussain first, we find that there is enormous evidence on record supporting the grounds on which the High Court acquitted them.
The reasons given by the High Court for acquittal of the two accused are neither artificial nor ridiculous. It is well-settled that with the acquittal the presumption of innocence of the accused becomes double so this Court would interfere only in exceptional cases and that too on basis of overwhelming proof leading to conclusive and irresistible conclusion of guilt of the accused, obviously to avoid grave miscarriage of justice. The tendency on the part of the complainant party to implicate innocent persons with guilt is judiciously well-recognized. In the instant case, the eye- witnesses named as many as ten persons as accused out of whom six persons allegedly armed with Sotis were acquitted by the trial Court. Neither the complainant, nor the State filed any revision or appeal against their acquittal in the High Court. This will show that the complainant and the eyewitnesses had thrown noose wide enough to implicate as many persons from the side of the accused as they wished. The two accused namely, Mukhtar Ahmed and Muhammad Akram admitted to have killed the deceased but in different manner. The seven injuries suffered by the deceased are all incised wounds which could be caused by two persons. We, therefore, do not see any C compelling reason to interfere with the well reasoned acquittal of Mushtaq Ahmed and Fida Hussain.
8. Adverting to the petition filed by Mukhtar Ahmed and Muhammad Akram against their convictions and sentence, we find that they admitted to have killed the deceased on seeing him embracing and kissing Mst. Ruqqayya the sister of Mukhtar Ahmed. The High Court has not found the eye-witnesses as totally unreliable and has not excluded their entire statements from consideration and by giving the benefit of doubt has acquitted the co-accused. On our independent assessm ent of the evidence and circumstances of the case we do not see any valid reason to differ with the conclusions drawn by the High Court from the evidence on record. The eye-witnesses are partly dependable and the rule of prudence requires corroboration of their statements qua petitioners which is very much available in the form of admission made by the petitioners themselves of having killed the deceased. Having placed all the factors favouring belief in the accusation in juxtaposition to the corresponding factors favouring the plea of grave and sudden provocation we have come to the conclusion that the plea taken by the petitioners is neither satisfactorily established by the evidence and circumstances appearing in the case nor there is a reasonable possibility of the same being true so as to cast a reasonable doubt upon the prosecution case. According to the defence version the petitioners on seeing Mst. Ruqqayya with the deceased in the garden of Mahmoodul Hassan situate in Killa No,16 of the rectangle No,353/12 committed the murder of the deceased, there. It is in evidence that Mango Garden of Mahmoodul Hassan is one acre away from the place of occurrence wherefrom blood-stained earth was recovered. It was suggested to Rafique Ahmed P.W.2 in cross-examination that the occurrence had taken place in Killa No,13 of the Rectangle No,353/12 which suggestion was not admitted by him. No blood-stained earth was taken into possession from the Mango Garden of Mahmoodul Hassan.
Had Mst. Ruqqayya been present there, she could not have escaped unhurt and out of the two accused one could have easily chased and injured her in the near about area. Mst. Ruqqayya has not been produced in proof of the plea of grave and sudden provocation either. The petitioners could give evidence on oath in proof of the plea of grave and sudden provocation but they have refused to make statement on oath under section 340(2), Cr.P.C. The High Court has elaborately dealt with the defence plea and has given sound and cogent reasons supportable from the evidence on record for rejecting the same. We are, therefore, convinced that the High Court, while deciding the appeal, had kept the principles enunciated by the superior Courts for the safe administration of justice in criminal cases in mind.
9. For what has been said above, leave to appeal is refused in both the petitions and the same stand dismissed.