' MIR HAZAR KHAN KHOSO, J.-For murder of one Saleem Baig, respondent Abdul Halim was convicted by the learned Additional Sessions Judge, Gujrat, on 29-1-1991 and sentenced to death and fine. On appeal filed by respondent Abdul Halim the Lahore High Court accepted his appeal and set aside his conviction and sentence. Feroze Baig, brother of the deceased, filed this petition for leave to appeal against the judgment passed by the Lahore High Court.
2. It is case of the prosecution that on 2-2-1990 at about 9-30 p.m. Near Qabrastan Bhatia within the jurisdiction of 'B' Division Police Station, Gujrat, the respondent committed murder of deceased Saleem Baig by pistol. The incident was witnessed by complainant Muhammad Khalid, P.W.7, Chaudry Khadim Hussain, Advocate (given up), Tariq Javaid, P.W.8, and Sohail Shaheen, P.W.9.
According to the prosecution two empties were found from the Vardat and recovery of pistol was also made from respondent Abdul Halim, Report of the Formic Science Laboratory in respect of the same is in positive. The learned trial Court believed the ocular evidence produced by the prosecution, recovery of the empties, the pistol and the ballistic expert's report and thus found respondent Abdul Halim guilty for the murder of deceased Saleem Baig and convicted him for the same. However, the Lahore High Court found that the prosecution had failed to prove_ the motive alleged by the complainant. The medical evidence did not support the ocular testimony. The recovery of crime empties was doubtful. All the three witnesses were chance witnesses and the case, as such, against the respondent was not proved beyond reasonable doubt.
3. We have heard Sardar Muhammad Ishaq Khan, Advocate Supreme Court for the petitioner. It was contended that the High Court has not properly ' appreciated the evidence produced by the prosecution and on extraneous ground acquitted the respondent of the charge. With his assistance we have gone through the impugned judgment. The most important piece of evidence against the respondent is the ocular evidence of witnesses Muhammad Khalid, Tariq Javaid and Sahail Shaheen. Admittedly the incident had taken place at the late hours of the night in the month of February at 9-30 p.m. The presence of all the three above said witnesses at the place of incident, therefore, is doubtful. Even the recovery of the empties from the Vardat and the recovery of pistol from respondent Abdul Halim is fully doubtful as it had not been made in presence of independent witnesses. The learned High Court had properly assessed the ocular and circumstantial evidence.
We have not been impressed by the arguments advanced by the learned counsel for the petitioner to call for interference by this Court to grant permission. We, therefore, see no reason to grant leave. Accordingly the petition for leave to appeal is dismissed. .