ZIA MAHMOOD MIRZA, J. ---Respondents Nos. l to 5 herein were put on trial before Additional Sessions Judge, Sargodha for the offences under section 302/307/148/149, P.P.C., on the allegation that having formed an unlawful assembly, they committed the murder of one Muhammad Sharif and made murderous assault on Muhammad Ashraf and Mazher Hussain P.Ws. On 7--6-1990 at 2- 15 p.m. The motive for the alleged occurrence was that the accused persons suspected Mazher Hussain P.W. Of having illicit relations with their girl Mst. Fateh Bibi. Case of the prosecution was that on the day of the occurrence, the complainant Muhammad Ashraf, his father Muhammad Sharif and cousin Mazher Hussain were going towards Adda (Lorry Stand) and they had hardly covered a distance of one acre froth their house when all the five accused armed with .12 bore guns emerged from the back of the house of one Muhammad Amin. Sultan accused raised a Lalkara exhorting his companions to do away with all the three members of the complainant party whereafter Muhammad Aslam and Sultan respondents fired to shots which hit Muhammad Sharif on his left leg. Muhammad Ashraf and Mazher saved their life by lying down on the ground. The occurrence was also witnessed by Muhammad Ijaz and Muhammad Shafi (given up P.Ws.). The injured Sultan later succumbed to the injuries in the hospital
2. To prove its case, the prosecution relied upon the oral testimony furnished by the complainant, Muhammad Ashraf P.W.1 and Mazher Hussain P.W.2, evidence of recoveries and medical evidence.
The accused in their statements under section 342, Cr.P.C. Controverted the prosecution story.
Respondents Nos.2 to 5 totally denied their participation in the occurrence while Sultan respondent No. l made the following statement:----- "The P.Ws. Have deposed against me on account of enmity. I have been falsely implicated in this case on the basis of twisted allegations under the influence of Qureshi Muhammad Saeed and Qureshi Amir Haider, Senators who helped the complainant party during the investigation. In fact, I alongwith my cousin Muhammad Nawaz who was carrying his licensed gun was going to Adda Sultanpur from my house and we were at a short distance from the corner of the sugarcane crop of Amir Khan Maikan when Mazher Hussain P.W. And my daughter Fateh Bibi emerged together hand in hand in an objectionable manner from the corner of said sugarcane crop. On seeing them in that condition I lost my control on account of sudden and grave provocation and challenged Mazher Hussain and Fateh Bibi. Mazher ran towards his house through the adjacent vacant field of Abdullah while Fateh Bibi disappeared into the sugarcane crop. I snatched the gun which was loaded from the hand of my cousin Nawaz and fired a shot toward Mazher Hussain but in the meantime his uncle Sharif had reached there on hearing the hue and cry and shot instead of hitting Mazher accidentally hit Sharif deceased who fell down. In the meantime Nawaz snatched back gun from me while Mazher escaped towards his nearby house. Ashraf P.W. Was not present nor the occurrence was witnessed by Shaft and Ijaz P.Ws."
3. On appraisal of the prosecution evidence, the learned Trial Judge did not believe the prosecution version as narrated by the to eye-witnesses whose presence at the spot was held to be doubtful.
The learned Judge did not accept that all the five accused had participated in the occurrence as, in his view, if all the five accused had taken part in the occurrence as alleged, the to P.Ws.
Accompanying the deceased particularly Mazher Hussain P.W. Who according to the prosecution version was the main target could not have remained unhurt. Prosecution case was thus rejected by the Trial Judge with the observation that neither the eye-witnesses witnessed the occurrence nor was the number of the accused five. Relying, however, on the incriminatory part of the plea taken by Sultan accused, in his statement under section 342, Cr.P.C. And disbelieving the exculpatory part thereof, the learned Judge held that "the version of Sultan looks possible to this extent that he fired at Mazher but it hit Sharif who came there on hearing of hue and cry". Taking the aforesaid view of the matter, the learned Trial Judge found that no case was made out against four accused namely Mian Muhammad, Muhammad Aslam, Abdul Khaliq and Muhammad Mumtaz, respondents Nos.2 to 5 herein and it was only Sultan respondent who was guilty of the charge of murder by virtue of section 301, P.P.C. Respondents Nos.2 to 5 were accordingly acquitted of the charge by giving them benefit of doubt while Sultan respondent was convicted under section 302, P.P.C. And sentenced to life imprisonment and fine of Rs.2,000 with the direction that in case of default, he will further undergo S. I. Of one year. This was vide judgment dated 20-4-1991.
4. Feeling aggrieved, Sultan respondent preferred an appeal against his conviction and sentence while Muhammad Ashraf complainant, the petitioner filed to criminal revisions, one against the acquittal of respondents Nos.2 to 5 and the other for enhancement of sentence awarded to Sultan respondent. All the three matters were disposed of by a learned Single Judge of Lahore High Court who by his judgment dated 17-4-1994 upheld the acquittal of respondents Nos.2 to 5 and also acquitted Sultan respondent No. l taking the view that after the failure of prosecution to prove its case, truthfulness or otherwise of the defence plea could not be gone into "because it has to be accepted in its entirety and given effect to and not a part accepted and a part rejected". Appeal of respondent No. l was accordingly allowed and his conviction and sentence set aside and both the criminal revisions filed by the petitioner also dismissed by the learned Single Judge of the High Court.
5. Petitioner has now approached this Court seeking leave to appeal against the High Court judgment. His grievance, of course, is directed against the acquittal of the respondents. We have examined the impugned judgments of the High Court and the Trial Court. Both the Courts have held and rightly so that the prosecution failed to prove its case beyond reasonable doubt. Learned Trial Judge gave good reasons for taking the view that the to eye-witnesses produced at the trial did not witness the occurrence and the number of the accused was also not five as alleged. Both the P.Ws., on their own showing, were in close proximity of the deceased and thus within the range of guns of the accused but strangely enough, none of them received any injury. Medical evidence also shows that all the injuries on the persons of the deceased could be the result of one shot. In the circumstances, respondents Nos.2 to 5 were rightly given the benefit of doubt and acquitted.
Their acquittal based as it is on correct appreciation of evidence does not warrant any interference by this Court. Leave petition qua them is accordingly dismissed.
5-A. As regards Sultan respondent, however, the question arises whether his defence plea when accepted in toto did not make him liable for a culpable offence. Leave in his case is granted to examine the question of his culpability.
Bailable warrants against him be issued in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of the Trial Court.