MUHAMMAD MUNIR KHAN, J.---In the occurrence which took place on 17-6-1988 at 5-30 p.m. At the Hotel of Fateh Khan in old Adda Larian, Mochh, District Mianwali, Khalid Khan appellant and his brother Muhammad Anwar Khan allegedly fired shots from gun and pistol respectively at Abdur Razzak and thereby caused his instantaneous death in the presence of Muhammad Khan P.W.5 and Shah Nawaz P.W.6. According to the medical evidence, the deceased suffered five fire-arm injuries on his person. The injuries found on his chest and shoulder, which were sufficient to cause death in the ordinary course of nature, were caused by the appellant and the injuries found on his palm and wrist were caused by Muhammad Anwar Khan. F.I.R. Of this incident was lodged on the report of Muhammad Khan P.W.5 the maternal uncle of the deceased at Police Station, Mochh at a distance of 1-1/2 furlongs from the place of occurrence on the same day at 6-15 p.m. And was recorded by Ghulam Muhammad, Inspector P.W.8. The motive allegedly was that on the eventful day at about 8.-00 a.m. Khalid Khan appellant had gone to have a round of his lands near the Dera of Abdur Razzaq deceased to which the latter objected. This led to exchange of hot words between them. The appellant went away threatening the deceased with dire consequences.
2. No empty was recovered from the place of occurrence. The appellant was arrested on 26-6- 1988. He got recovered pistol Exh.P.5 from his house on 29-6-1988 in the presence of Shah Nawaz P.W.6 and Ghulam Muhammad P.W.8. Since no empty was recovered from place of occurrence, the pistol Exh.P.5 was not sent to the Forensic Science Laboratory.
3. To prove its case, prosecution produced nine witnesses. Muhammad Khan P.W.5 and Shah Nawaz P.W; 6 have given ocular account of the incident. They claim to have seen the appellant firing shot from his gun hitting on the chest and shoulder of the deceased and Muhammad Anwar Khan firing shot from his pistol hitting on the right hand and wrist of the deceased. Dr. Mehr Khan P.W.7 has proved the post-mortem examination report. Shah Nawaz P.W.6 and Ghulam Muhammad, Inspector P.W.8 have proved the recovery of pistol from Khalid Khan. No weapon could be recovered from Muhammad Anwar Khan.
4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised plea of false implication on account of enmity. In answer to question No.9, he stated:-- "Abdur Razzaq deceased was involved in criminal cases and declared a, proclaimed offender in 1984. 1 used to give secret information about him to Sher Muhammad, S.-I. (since deceased) and the latter raided his house on many occasions for his arrest. Abdur Razzaq deceased came to learn about this and became my enemy. He was always at the look out to attack me. I have been falsely involved in this case due to enmity. The deceased had many enemies including the relatives of Abdur Rashid Mirasi, who was killed by him and Shah Nawaz P.W. The deceased and the P.Ws. Were tried for his murder and sentenced to death and to years' R.I. Respectively, although acquitted on appeal. "
No witness was produced in defence. He did not make any statement on oath in disproof of charge against him. He, however, tendered school leaving certificate Exh.DD, certified copy of F.I.R. Exh. DE, and copy of judgment dated 21-12-1978 Fxh.DF in defence.
5. The Trial Court, vide its judgment dated 25-11-1989 convicted the appellant and Muhammad Anwar Khan co-accused under section 302/34, P.P.C. Khalid Khan appellant was sentenced to death and a fine of Rs.10,000 or to '" years' R.I. In default with the direction that the fine if recovered shall be paid to the legal heirs of the deceased. Muhammad Anwar Khan was sentenced to imprisonment for life and a fine of Rs.10,000 or to years' R.I. In default with' similar direction for payment of fine to the legal heirs. On appeal, the Lahore High Court, Lahore, vide judgment dated 12-4-1992 has acquitted Muhammad Anwar Khan co-accused and while maintaining the conviction of Khalid Khan under section 302, P.P.C., has altered the death sentence to imprisonment for life. The fine imposed by the Trial Court and imprisonment in default thereof was maintained: Feeling aggrieved thereby, Khalid Khan filed a petition from jail seeking leave to appeal which was granted on 4-10-1993 to reappraise the evidence.
6. Learned counsel for the appellant has contended that the eye-witnesses are interested and not reliable; they have not been believed to the extent of Muhammad Anwar Khan co-accused to whom they had assigned active participation in the crime; during investigation the police found that Muhammad Anwar Khan co-accused had not participated in the occurrence at all; the motive is weak and there is no independent corroboration of the ocular evidence qua the appellant.
On the contrary, learned counsel appearing for the State has supported the impugned judgment.
7. We have carefully attended to the arguments addressed by the learned counsel for the parties.
We do not feel persuaded to agree with the learned counsel for the appellant. The eye-witnesses were fully believed by the Trial Court. The High Court has also believed them, but after believing them has acquitted Muhammad Anwar Khan co-accused mainly on the opinion expressed by the Police 'Officer/Investigator that Muhammad Anwar Khan was found innocent during the investigation as many persons had appeared before him in his defence. It may be noted that the persons who had appeared in defence of Muhammad Anwar Khan co-accused before the Investigator were not produced in Court in defence of Muhammad Anwar Khan. We are of the view that the reasons given by the High Court for acquitting the co-accused are unjust, unsound and erroneous, and are of no evidentiary value and cannot be used to contradict the ocular account of the occurrence given by the eye-witnesses who have been believed by the Courts below. So, the acquittal of Muhammad Anwar Khan based on the opinion of the Investigating Officer is hardly a ground for acquitting the appellant by giving him benefit of doubt. On our independent assessm ent of the evidence we feel that the eye-witnesses are absolutely dependable witnesses and Muhammad Anwar Khan has been acquitted without any legal and factual justification. The judgment to the extent of his acquittal is perverse. The eye-witnesses had no enmity with the appellant or with Muhammad Anwar Khan accused. The statements made by them are in consonance with probabilities and materially fit in with other evidence and circumstances appearing in the case and 'are confidence inspiring. Recovery of pistol instead of gun from Khalid Khan appellant will not adversely affect the testimony of the eye-witnesses, in that, no crime empty having been recovered from the place of occurrence it cannot be said with certainty that the pistol recovered from the appellant was the one which was used by Muhammad Anwar Khan co- accused during the occurrence. We do not see any infirmity whatsoever in the impugned judgment warranting interference so far as the conviction and sentence of the appellant is concerned.
8. The upshot of the above discussion is that there being no merit in the appeal, the same is dismissed.