NASIM HASAH SHAH, J.-The facts which form the background to this petition are that Abdur Rashid alias Sheeda (respondent No. 1) and Rashid alies Bhola (respondent No. 2) were tried by the learned Additional Sessions Judge, Lahore, for the murder of Noor Hassn. The learned trial Judge finding, Rashid alias Bhola (respondent No. 2) to be not guilty acquitted him but Abdur Rashid alias Sheeda (respondent No. 1) was found guilty and convicted under section 302, P. P. C. And sentenced to death, vide his Judgment dated 10-10-1974. A reference was made by the learned Additional Sessions Judge (Murder Reference No. 127 of 1975) to the High Court for confirmation of the sentence of death imposed on Abdur Rashid alias Sheeda. He also filed an appeal (Cr. Appeal No. 740 of 1974) against his conviction and sentence. Abdul Shakoor complainant (Petitioner herein) feeling aggrieved by the acquittal of Rashid alias Bhola (respondent No. 2) filed a Revision Petition (Cr. Revision No. 442 of 1975) to challenge it. The High Court, which heard all these matters together; rejected the reference made by the Additional Session Judge and accepted in part the appeal of respondent No 1, Abdur Rashid alias Sheeda, holding that the offen0c committed by him did not fall within the purview of section 302. P. P. C. Hot full under section 304, Part I of the P. P. C. He was convicted accordingly and sentenced to seven years' R.1. The revision petition preferred by Abdur Shakoor complainant against the acquittal of respondent No. 2 was dismissed. He now seeks leave to appeal against the aforesaid judgment of the High Court.
2. According to the prosecution story Abdul Shakoor (Complainant/ petitioner herein) was running a cloth shop in the main Bazar Chunian. One Yasin (not produced) used to buy cloth from his shop.
A month prior to the occurrence, which took place on 15-8-1972, this Yasin came to the petitioner's shop and wanted to purchase some cloth of superior quality which was not available at the time with him. The petitioner advised him (Yasin) to purchase it from Rasbid allay Sheeda (respondent No. 1) who was also a cloth merchant in the same bazar. Yasin accordingly started purchasing cloth from respondent No 1. This was on credit. Four days before the occurrence, on 11-8-1972, which was a Friday, the petitioner, after offering Juma prayers, was proceeding towards his shop when he was accosted in the way by Abdur Rashid alias Sheeda (respondent No. 1). The latter informed the petitioner that Yasin who was directed to his shop by him had made purchases on credit but had not so far paid the amount due. He asked the petitioner to make Yasin pay the money. In answer the petitioner stated that he had no concern with Yasin and had nothing to do with getting the outstanding amount recovered from him. This reply annoyed respondent No. 1 and he started abusing Abdul Shakoor (petitioner) and threatened that be would see that the money was recovered from him.
3. On the fateful day, i.e. 15-81972, at about 12-00 noon, when Abdul Shakoor petitioner was sitting at his shop, Rashid alias Bhola (respondent No. 2) approached him and told him that he had been sent by respondent No. 1 to inform him that if he did not get the money recovered from Yasin, he would face dire consequences. Meanwhile, Noor Hasan came to the shop of the petitioner. He was apprised of the situation by him. Noor Hasan suggested to him that the matter should be settled by going to the shop of respondent No. 1. Accordingly, they proceeded towards that direction. They were while at some distance from his shop when respondent No. 2 met them. He started to assault the petitioner and also to abuse him. While the grappling was going on between respondent No. 2 and the petitioner, respondent He 1 came out of his shop, holding a revolver in his hand. No raised a lalkara and abused both the petitioner and Noor Hasan. In reply Noor Hassn abused respondent No. 1. At this he fired a shot at Noor Hasan which hit him in the right eve. Noor Hasan fell down after receiving the injury. He was removed to the hospital but he succumbed to his injury and expired there. The occurrence was witnessed amongst ether by Hafiz Muhammad Siddique (P. W. 12) and Fateh Muhammad (P. W. 13).
4. Both the respondents were arrested on the same night. Daring the -investigation the weapon of offence, revolver Exh. P. 1, was recovered from respondent No. 1. Rashid alias Bhola (respondent No. 2) who was also injured in the incident, wag medically examined by the doctor on 16-8-1972, and the following seven injuries were found on his person :----
(1) Lacerated wound 1/3' x -- " skin deep on the right aide of neck.
(2) Contusion right lower eyelid.
(3) Contusion 1' x 1' on the right side of forehand.
(4) Abrasion. 2--- long on left side of neck.
(5) Contusion 1' X 1' an left shoulder.
(6) Abrasion 1' x 1' in front of chest, left side.
(7) Swelling of left ear (pinna).
In his cross-examination the doctor opined that "these injuries were caused with stick or sofa.
5. The plea taken by respondent No. l in, his statement under section 342, Cr. P. C. Was that Abdur Shakoor petitioner and his companions armed with dandas and sotas had attacked Rashid alias Bhola (respondent No. 2) at his shop and in the altercation that followed while they were trying to snatch the revolver from him, it accidentally went off and hit Noor Hasan. According to him, Abdul Shakoor petitioner bad considered the demand of money by Rashid alias Bhola (respondent No. 2) as an insult and he bad come to attack respondent No. 2 on that account. A similar statement was made by respondent No. 2 in his examination under section 342, Cr. P. C. The learned Additional Sessions judge rejected the explanation giver by respondent No. 1 for firing and killing Noor Hasan and, therefore, found him gulity under section 302, P. P. C. However, respondent No. 2 was found to be innocent on the grand that he was grappling with Abdul Shakoor and no injury or overt acres attributable to him so far as Noor Hasan deceased was concerned.
6. Before the High Court, it was submitted on behalf of respondent No. 1 that the prosecution had suppressed the true facts, namely, that the petitioner with the help of Noor Hasan, armed with sotas, went to attack respondent No. 2 and that respondent No. 1 had acted is order to rescue him which he was entitled to do. In support of this contention it was submitted that the occurrence took place in front of the shop of respondent No. 1. The medical evidence showed that respondent No. 2 had received seven injuries on the vital parts of his body while there was not a single injury on the person of the petitioner who claimed that he was attacked by the respondents. It was also submitted that the motive was not substan--tiated as Yasin, who was central to the tragedy, was not produced. The State, on the other hand, contended that both Abdul Shakoor petitioner and Noor Hasan deceased were empty-handed and that there was thus no right of self-defence extending to the gee of fire-arm against them. The deceased 'had only come to mediate between the parties. It was suggested that respondent No. 2 was sent to lure the petitioner and the deceased to the shop of respondent No. 1 by hurling abuses on them and causing of the death of Noor Hasan was a pre-planned act which amounted to murder.
7. The High Court discounted the evidence of motive, observing that there was no connection between Abdul Shakoor petitioner and Yasin which showed that respondent No. 1 could hold Abdul Shakoor petitioner responsible for the debt incurred by Yasin. The failure to Produce Yasin was considered to be a very suspicious circumstance and it was observed that Yasin appeared to be the creation of a fiction by Abdul Shakoor. The story of Noor Hasan volunteering to become a mediator was also doubtful. It was observed that there was no evidence to show the depth of relations bet--ween them, which might induce Noor Hann to intercede on his behalf. The version of Abdul Shakoor that they were attacked by the respondents was believed by the absence of any injury on him. The story of the incident c Pen by the petitioner in his evidence was found not to be true. Therefore, the account deposed to by Hafiz Muhammad Siddique (P. W. 12) and Fatah Muhammad (P. W. 13) which hay on similar lines, was held to be equally unreliable. On the other hand, taking into consideration the venue, the injuries on the person of respondent No. 2 and the absence of any injury on the person of Abdul Shakoor, the defence version was held to be more plausible, and in this connection the case of Safdar Ali (P L D1953 FC 93) was relied upon.
According to the learned Judges what appeared to have happened was that it was Abdul Shakoor and Noor Hasan who went to the shop of Abdur Rashid alias Sheeda, respondent No. 1, to remonstrate with him. Respondent No. 2 was also present there and an altercation took place in which respondent No. 2 was injured and respondent No. 1, to extricate him fired a shot from his revolver. His version that the revolver went off during the process of being snatched by the deceased was not accepted, as there was no blackening and charring and the medical evidence showed that the shot was fired from 10 to 20 feet. However, as the shot was fired to rescue a friend and net with an intention to kill the deceased, it was held that the offence of respondent No. 1 did not fall within the mischief of section 302, P. P. C. He was, therefore, found guilty under section 304
(1) of the P. P C. And his sentence reduced to seven years' R.I.
8. Before us, on behalf of the petitioner, it was submitted that reliance on Safdar Alma case was not justified; that the injuries suffered by respondent No. 2 were not on account of beating given by dandas and sotas, but on account of grappling and that the shop of respondent No. 1 was in the same briar in which the shop of Abdul Shakoor was located and the circum, stance relied upon by the High Court that the fight took place before his shop was not material. Hence no case for interference with the finding of the Additional Sessions Judge was made out.
9. We have not been impressed by these submissions. No explanation has been given as to why Abdul Shakoor should have left his shop and gone to the shop of respondent No. 1. If respondent No. 2 had indeed come to the shop of the petitioner to deliver an ultimatum, the altercation should have taken place at his shop. It is, therefore, not understandable why Abdul Shakoor and Noor Hasan followed him to the shop of respondent No. 1. No material exists on the record to phew that the shops of Abdur Rashid respondent No. 1 and Abdul Shakoor petitioner are located near each other. The shop of Abdul Shakoor is not shown in the site plan. In fact from the submission made before us by the learned counsel for the petitioner it appears that it was situated in another Bazar.
The story of grappling with respondent No. 2 is belied of by the nature of injuries were by him. We agree with the learned Judges in the High Court that the prosecution witnesses were not reliable.
As there are some features in the case which support the view taken by the High Court and there is some material on which it could reach the conclusion that it arrived upon, accordingly, no case is matte out for interference by this Court. This petition for leave to appeal is, therefore, disallowed.