' CH. MUHAMMAD ARIF, J.---Through this petition under clause (3) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner/complainant in a murder case, has sought leave to appeal against judgment, dated 7-11-1995 made by a Division Bench of the Peshawar High Court Bench, D.I. Khan acquitting respondents Nos.1 and 2 therein.
2. Respondents Nos. I and 2 as also their brothers Faiz-ur-Rehman and Khub Nawaz Khan were tried by a learned Additional Sessions Judge, Bannu for the murder of Noor Muhammad. The prosecution case was that all the accused, in furtherance of their common intention, armed with deadly weapons caused the death of Noor Muhammad Khan and also attempted at the life of Abdul Qadir (Khan) complainant.
3. The occurrence took place on 3-1-1992 at 10-00 a.m. In 'Nullah Pani', village Ghani Khel, within the jurisdiction of Police Station Domel, Bannu when complainant-Abdul Qadir alongwith Noor Muhammad deceased and P.Ws. Gul Zaman, Abdul Wadood and Shah Baraz were present in their lands near 'Nullah Pani' village Ghani Khel. Respondent Nos.1 and 2 namely Masoodur Rehman and Muhammad Ali alias Waleedur Rehman, fired at Noor Muhammad. As a result of the fire shot of respondents Masoodur Rehman, Noor Muhammad was hit and he fell to the ground. The shot fired by accused Muhammad Wali alias Waleedur Rehman however, proved ineffective. Thereafter, accused Waleedur Rehman, Faizur Rehman and Khub Nawaz opened fire at the complainant who was hit with the shots of accused Waleedur Rehman. Complainant also fell to the ground and at that juncture, the accused made good their escape. Besides the complainant (P.W.10) the occurrence was alleged to have been witnessed by Abdul Wadood (P.W.11), Gul Zaman and Shah Baraz (abandoned as unnecessary). Motive for the offence was alleged to be a dispute over the Nullah and trees standing thereon. The petitioner /complainant was taken to Police Station Domel, Bannu in an injured condition. He reported the matter there at 10-25 hours vide Exh.P.A.
Subsequently, the dead body of Noor Muhammad was also brought to the police station and the report of the complainant was reflected in formal F.I.R. (Exh.P.A.) by A.S.-I. Hukam Khan (P.W.13).
4. After holding trial, the learned trial Court convicted respondent Masoodur Rehman for 'Qatl-i- Amd'. Observing that the prosecution evidence was not sufficient within the meaning of section 304-A, P.P.C. For awarding the punishment of 'Qisas', he was held guilty of 'Qatl-i-Amd' liable to Ta'zir punishable under section 302(b), P.P.C. He was sentenced to undergo life imprisonment on that account. Further observing that the complainant had not charged him for firing at him or any other person of complainant party with the intention of committing 'Qatl-i-Amd', it was held that charge under section 324, P.P.C. Was not made out against him.
5. Accused Wali Muhammad alias Waleedur Rehman was convicted under section 324, P.P.C. And sentenced to undergo 10 years' R.I. With a fine of Rs.2,000 or in default of payment of fine to undergo further two months' S.I. He was also held liable to pay Rs.3,000 as 'Daman' to the complainant for injuries caused to him. In the event of his failure to pay 'Daman', he was directed to be kept in Jail until such payment within the meaning of section 337-Y, P.P.C.
6. Both the convicts /respondents were held entitled to the benefit of section 382-B, Cr. P. C.
7. Accused Faiz-ur-Rehman and Khub Nawaz Khan were acquitted of the charges vide judgment, dated 7-8-1994.
8. Both the respondents appealed against their conviction as above, before the High Court. Their appeal was allowed by the Peshawar High Court, D.I. Khan Bench vide judgment, dated 7-11-1995, finding that prosecution had failed to bring home the guilt to the accused as the evidence against all the accused was indivisible and, therefore, they (the convicts/respondents Nos.1 and 2) are entitled to be treated at par with their acquitted co-accused/brothers. As regards the plea that the complainant was an injured witness whose testimony should not be brushed aside easily, the learned Judges observed that such statement of an eye-witness can only lead to the conclusion that he was present on the spot but " - - - - not at all to the Rs.10,000 (rupees ten thousand) each or in default to suffer S.I. For six months each. Benefit of section 382-B, Cr.P.C. Was extended to them. On appeal and reference, the Lahore High Court, Lahore vide its judgment dated 15-1-1998 acquitted the respondents of the murder charge. This is a petition for leave to appeal against the judgment of acquittal.
2. It is submitted by the learned counsel for the petitioner/complainant that the High Court has not properly appraised the evidence on record and has, thus, caused injustice to the petitioner.
3. After hearing the learned counsel for the petitioner at some length and perusing the record, we see no substance in the argument of the learned counsel, inasmuch as, the High Court has analysed the entire prosecution evidence available on record and has concluded that the prosecution has not succeeded to establish its case against the respondents beyond reasonable doubt. The High Court did not accept the ocular account on the ground that there was no occasion for the complainant to go out to irrigate his fields at 3-00 a.m. The Court held that, admittedly, there was no turn of water of the complainant at the relevant time as he had himself stated so in his evidence. This is a very strong piece of evidence which belies the prosecution version. In other words, it might be reasonable to presume that the complainant did not come out with the truth.
Additionally, the evidence was discarded by the High Court stating if they were present at the spot, they were required to have physically intervened to save the life of the deceased. This circumstance has also created considerable doubt in the prosecution case. They did not raise even a little finger at such a gruesome murder. It is advantageous to quote the operative part of the impugned judgment:--- "A careful analysis of the ocular account would indicate that the conduct of the complainant and eye-witness Muhammad Hussain P.W.5 was not natural inasmuch as if these witnesses alongwith' third (Ashfaq Ahmad not produced ) had witnessed the occurrence, there was nothing to prevent them from apprehending the appellants who were not carrying any fire-arm. They permitted the appellants to cause a hatchet blow on the head of Mst. Shamim Akhtar and allow them to cut traches and careited vessal through and through and another incised wound in front of right shoulder. If the victim was being subjected to these injuries and if she has raised hue and cry as alleged by the prosecution, then she must have tried to ward off the attack with her hands. But surprisingly there is nothing in the medical evidence to suggest that she resisted the attack. There were no marks of violence on her hands or on her arms. The nature and locale of injuries received by Mst. Shamim Akhtar suggests that she was done to death when she was asleep and she neither resisted the attack nor there was anybody to challenge the assailants. The dimensions of the injuries further negate that weapons used were of two kinds. If there was two weapons i.e. Hatchet and Chhuri as alleged by the prosecution, the dimensions of injuries would have been different.
' There are material discrepancies in the statement of two eyewitnesses inasmuch as P.W.5 stated that the accused ran way by jumping the broken wall whereas P.W.6 stated that the appellants ran away from the side of the said wall. P.W.5 was not aware of the motive part of the prosecution story and the same remained uncorroborated. Muhammad Hussain P.W.6 who explained his presence by stating that he was going to his house after attending to his agricultural fields. But when questioned whether on that evening it was his turn of water, he replied in negative. That being so there is no reason why he should have gone to his fields at an odd time like 3-00 a.m. In the morning. Similarly the presence of even Niaz Ahmad P.W.6 is doubtful as his own showing he was away from his house on account of his turn of water. The way he reacted to the scene of his wife being slaughtered and the nature of injury received by her would show that he was not present at the time of occurrence.
' The motive part of the prosecution story has also not ben proved. Firstly because there is no corroboration of P.W.6 qua the motive and secondly there was no direct motive against Mst.
Shamim Akhtar deceased to have prompted the appellants to kill her. The evidence of recovery is also of no consequence as it is belated i.e., the weapons were recovered after more than 1-1/2 months and is against normal human conduct that the appellants would retain the blood-stained weapons as they can be used against them."
The above operative part of the judgment shows beyond doubt that the prosecution evidence has critically been discussed by the High Court and has not at all been believed to convict the respondents. We have not been persuaded to interfere with the well-reasoned judgment of acquittal recorded by the High Court. The judgment cannot be termed to be shocking or perverse or unreasonable. This being so, the principles laid down by this Court in Ghulam Sikandar v.
Mumraz Khan (PLD 1985 SC 11) have been followed to meet the ends of justice.
Resultantly, this petition being without ' substance is hereby dismissed and leave declined.