MUHAMMAD RAFIQ TARAR, J.---Safeer Hussain complainant/petitioner seeks leave to appeal from the judgment of a learned Division Bench of the Lahore High Court dated 26-7-1993 whereby Criminal Appeal No.131 of 1991 of Muhammad Jahangir, Muhammad Fiaz and Muhammad Tanveer, respondents 1 to 3 challenging their conviction under section 302/34, P.P.C. Carrying death sentence and a fine of Rs.30,000 for respondents Nos.1 and 2 and imprisonment for life and a fine of Rs.30,000 for respondent No.3, was allowed and they were acquitted of the charges.
2. The respondents were tried on the allegation that on 20-8-1988 at 5-00 p.m. In the area of village Dina Herdo, on the Lalkara of Muhammad Tanveer respondent the other two respondents namely Muhammad Jahangir and Muhammad Fiaz fired their .12 bore guns at Ghalib deceased resulting in his death at the spot.
3. Safeer Hussain complainant, Muhammad Rafaq and Rab Nawaz supported the prosecution version at the trial. The prosecution also relied on the evidence relating to motive and recoveries.
The respondents pleaded not guilty to the charge and denied the prosecution allegation against them.
4. Learned counsel for the petitioner contends that the learned trial Court had rightly convicted the respondent; the High Court has failed to appreciate the evidence in its true perspective and finding of acquittal is based on 'misreading of evidence. He particularly drew our attention to an observation made by the learned Judges in para. 5 of the impugned judgment which reads as under:-- "It would be worthmentioning that all the witnesses in their statements under section 161 as well as 154, Cr.P.C. Had asserted that only two shots were fired, one hit the right elbow of the deceased and the other shot hit the back of the deceased, which resulted in his death. In Court the witnesses, tried to improve their statements by stating that the deceased was fired at the front, and the shot which hit the elbow of the deceased also hit on the front of his abdomen, The witnesses were confronted with their statements made before the police but they could not give any explanation."
5. After examining the evidence on the record we find that the above observation is true only to the extent of Safeer Hussain complainant who asserted having stated in the F.I.R. That "shot fired by Jehangir accused hit left side of the abdomen" of his brother after hitting his left arm. He was confronted with the F.I.R. Wherein it was not so recorded. Regarding head injuries he admitted that he had not stated in the F.I.R. That "the deceased leaned his head and some of the pellets hit his forehead. He further admitted that in the F.I.R. He had stated that only two injuries "were caused by Jahangir and Fayyaz on left ptarm elbow and on the back towards right flank respectively". It is true that no occasion arose for any confrontation with the statement under section 161 of the Cr.P.C. Of the other two witnesses and to that extent above observation is based on misreading but that would not be enough to reverse the finding of acquittal for the reasons firstly that the aforesaid witnesses appeared before the Investigating Officer on the next day and no reasonable explanation was offered for this delay; secondly, according to the eye-witnesses the accused persons fired only two shots whereas the doctor had opined that the injuries found on the dead body were caused by at least four independent fire shots; thirdly, the parties were admittedly inimical towards each other as admitted by Safeer Hussain complainant in cross-examination.
Safeer Hussain is the husband of the real paternal aunt of Rafaq P.W. Both Rafaq and Rab Nawaz P.Ws. Were residents of Rawalpindi and were, therefore, chance witnesses of the occurrence which took place in village Herdo Dina. They have not given convincing explanation for their presence at the spot. Rab Nawaz stated that he was a buffaloes and milk dealer and on the fateful day he had gone to Herdo Dina to purchase a buffalo. In cross-examination he stated that he has a licence from C.D.A. To keep his buffaloes at his house. He was directed by the Court to produce the said licence. On the next day he produced a photo copy of a challan prepared by Horticultural Directorate for Cattle-trespass and came up with a false statement that it was the licence given by the C.D.A. Under which he was keeping his buffaloes in Islamabad. The ocular evidence thus does not inspire confidence. The principles laid down by this Court for interference with an order of acquittal are not attracted in this case. Ghulam Sidandars s case (PLD 1985 SC 11) is referred.
' For the foregoing reasons, there is no merit in this petition and the same is dismissed.