1. ' DORAB PATEL, J.- As. Umar Jan and his brother Sultan Jan were going from their village Tattar Khel to village Land Ka mar, they were waylaid and Umar Jan was shot dead whilst Sultan Jan was injured. The respondent Kohistan to whom we will refer in this judgment as the respondent was charged together with his brother who is absconding for the murder of Umar Jan and for causing injuries to Sultan Jan. As the respondent's brother was absconding only the respondent was tried under sections 302/34 and 404/34, P. P. C. By the learned Sessions Judge, Kohat, who by his judgment dated 11th November, 1974 convicted the respondent for murder and sentenced him to life imprisonment. He also convicted the respondent under section 324/404, P. P. C. And sentenced him to one year's R. I. And two years' R. I. Respectively. All the sentences were to run concurrently.
2. The respondent challenged his convictions in an appeal in the Peshawar High Court which was allowed, therefore, the State filed' an appeal against the respondent's acquittal and we have heard this appeal with the assistance of the learned counsel for the parties.
3. ' The respondent admitted that there had been a scuffle between him and his brother and between the deceased and his brother, Sultan Jan. But, his case was that it was the deceased and his brother, who had attacked him, therefore, he had inflicted injuries on Sultan Jan in self-defence and he further said that a shot aimed at him by Sultan Jan had accidentally hit Umar Jan and killed him. As the respondent thus admitted his presence at the occurrence, the real question in this appeal is how the occurrence took place.
4. ' In order to prove the occurrence, the prosecution examined Sultan Jan and his cousin, Qayyum, as eye-witnesses of the occurrence and the prosecution also relied on the dying declaration of the deceased which was duly recorded and proved. Sultan Jan said in his evidence that he, his brother and his cousin, Qayyum, were going to village Land Kamar on the day of the occurrence on the instructions of his father and they were waylaid by the respondent and his brother. Both the assailants were armed with topaks and the absconder was also armed with a Thor. Further, according to the witness, his brother, the deceased, was walking ahead of him, whilst he was followed by his cousin. Qayyum. The absconder caught hold of his brother, Umar Jan, and hit him on the head with his loor, but his brother managed to escape from his assailant and started running. Sultan Jan then said :- ' It also started running besides him. The accused and the absconder also fired one shot each at the deceased with which he was hit and fell down. Mir Janan absconder fired at the deceased from a distance of 3/4 paces while accused Kohistan fired at the deceased then injured at a distance of 7/8 paces. Mir Janan absconder took the licensed shotgun of my father from Umar Jan deceased then injured while Kohistan accused took the bandolier from him. Then the accused and the Absconder came tp me, and Kohistan accused caught hold of me while the absonder Mir Janan gave me blows with his loor on my head and thigh. During the struggle between me and accused Kohistan, over the loor, the fingers of Kohistan accused were injured with the sharp edge of the loor as the handle of the loor was in my hand and I pulled it in order to save my life . .
5. ' The witness's description of the occurrence is supported by that of his cousin, Qayyum and also by the dying declaration of the deceased.
6. ' Turning now to the case of the respondent he said in his statement in the Sessions Court that he and his brother had gone to the fair at village Land Kamar and as they were returning Sultan Jan and his brother, who were armed with topaks had waylaid them. The respondent then said :- "Umar Jan got up and he gave me a blow of the butt of gilty rifle on my left shoulder. I grappled with him. Sultan Jan accused ran from right side and he fired a shot at me from a close range. But it hit his brother Umar Jan who was injured and fell down by mistake. Due to some defect the shot- gun of Sultan Jan did not work after that as the empty remained in its chamber, during the course of grappling Sultan Jan accused gave me a blow with the butt of shotgun on my right shoulder. I grappled with him, he took out a knife and gave me a blow with it on my head. He also injured me on my hand. I threw him down, then Sultan Jan injured my linger with his teeth. The occurrence was witnessed by Mir Janan and Sakhi Janan. I went to P. S. Latamber and entered my report in D. D. No, 15 dated 2nd November, 1973 Exh. D-4. My injury-sheet was also prepared."
7. ' The respondent did not examine any witnesses in order to prove the plea of self-defence raised by him, but he produced documentary evidence which even according to Mr. Safdar Hussain proved that, the, family of the complainant was hostile to his family.
8. ' The learned Sessions Judge was highly impressed by the evidence of Sultan Jan and his cousin and he held that this evidence together with the dying declaration of the deceased was sufficient to prove the respondent's guilt, the more so, as it was corroborated by the medical evidence. He accordingly convicted the respondent as stated.
9. ' In a much more careful appreciation of the evidence, the learned Judges of the High. Court pointed out that as the prosecution had failed to prove the motive for the crime, the burden was heavily on the prosecution to prove the occurrence. Further as the learned Judges were of the view that the description given of the occurrence by the eye-witnesses was falsified by the medical evidence, they held that the prosecution evidence was not fit to be relied upon, and they were also of the view that the plea of self-defence raised by the respondent could not be ruled out.
10. Accordingly, by their judgment dated 2nd March, 1976, they acquitted the respondent.
11. ' The prosecution case about the motive for the crime rests on the evidence of Sultan Jan, who said that the appellant suspected that the deceased was carrying on with the appellant's sister-in-law.
12. As no question about this alleged motive was put to the respondent in his examination under section 342 of the Criminal Procedure Code by the learned Sessions Judge, we agree with, the view of the learned Judges of the High Court that the prosecution cannot rely, on Sultan Jan's evidence of motive. This by itself is of course not fatal to the .Ocular evidence, but as the prosecution had failed to prove the motive for the crime, the Sessions Court should have scrutinised the ocular evidence very carefully. And, if it had done so, it would not have reached the conclusion that the eye-witnesses and/or the deceased were independent witnesses.
13. ' It is true that Sultan Jan repudiated the suggestions of family enmity on which he was cross- examined, but as he admitted that Azad Shah was the respondent's father, he was cross-examined on the suggestion that for almost a decade, there had been continuous civil and criminal litigation between Azad Shah and his (Sultan Jan's) grand father.In which Azad Shah had been consistently successful. The witness professed not to know anything about this litigation, but in view of the documentary evidence produced by the respondent including a judgment of the learned Senior Civil Judge, Kohat in Kher Zad Shah, Zawarher Din Shah, Mir Wali Shah sons of Marabat Shah La!
14. Bad Shah, (5) Mir Ali Shah, Sodad sons of Mozmal Shah, Caste Afghan resident of Tatar Khel Com Land Kamar, Tehsil Karak, Distt. Kohat v. Azad Shah son of Abdul Rahim dated 12th September, 1974, Mr. Safdar Hussain very fairly conceded that the respondent had proved that the deceased, his brother and his cousin, Qayyum were hostile to him. Therefore, on this ground alone their evidence was not fit to be accepted without corroboration. But, unfortunately, this was a circumstance which escaped the attention of the Sessions Court.
15. ' Mr. Safdar Hussain, therefore, fell back upon the hypothesis of the learned Sessions Judge that the medical evidence was supported by the prosecution case and further that the medical evidence was inconsistent with the plea of self-defence raised by the respondent. As leave was given to examine the latter question, we may point out here that according to Dr. Said Adam Shah, the respondent had four incised wounds on his hands, one incised wound on his head and contusions on his shoulders. No doubt the injuries were all superficial and this is a circumstance which appears at first sight to cast doubt on the respondent's plea of self-defence. However, the contusions support the respondent's claim in his statement in the Sessions Court that Sultan Jan had given him a blow with the butt of his gun. Similarly, the incised wounds on the hands which have been proved by Dr. Said Adam Shah support the respondent's claim that he had received injuries on his hands. Finally, the incised wound on the head of the deceased though superficial supports the respondent's statement that Sultan Jan "took out a knife and gave me a blow with it on my head". In these circumstances, we are unable to accept the submission that the medical evidence falsifies the respondent's plea of self-defence.
16. ' We now turn to the finding of the High Court that the medical evidence falsifies the ocular evidence. And, we would explain here that the learned Judges reached this conclusion because according to Dr. Said Adam Shah charring marks were present on at least one of the wounds of the deceased, and because it is very clear from the medical evidence that the assailant had fired at the deceased from in front and not from behind. Taking first the question of charring, the learned Judges were of the view that this evidence falsified the statements of Sultan Jan and of his cousin, Qayyum, that the respondent and his brother had fired at the deceased from a distance of 3 or 4 paces. Mr. Safdar Hussain criticised this finding and submitted that the learned Judges had not allowed for the fact that estimates of the distance from which an assailant fires at his victim are necessarily of a tentative nature. As the distance between the absconder and the deceased was supposed to be only 3 or 4 paces and in view of the fact that the weapon alleged to have been used was a gun, the submission is not without force. However, according to Sultan Jan and his cousin, as the absconder had first assaulted the deceased, after escaping from the clutches of the absconder, the deceased had started running away and Sultan Jan had followed him. Therefore, if the occurrence took place in the manner described by the eye-witnesses, both Sultan Jan and his brother would have been hit with the gunshots from behind. But, even Mr. Safdar Hussain had to admit in view of the medical evidence that the assailants had fired at the deceased and at Sultan Jan from in front, therefore, the medical evidence falsifies the ocular evidence on a very material particular and the view of the learned Sessions Judge that the medical evidence corroborates the ocular evidence is based on a misreading of the medical evidence.
17. ' Mr. Safdar Hussain then submitted with reference to the respondent's plea of self-defence that the incised wounds on the respondent were self-inflicted. But, when we pointed out to learned counsel that this was never the case of the prosecution in the Courts below, he very correctly dropped this plea and conceded that he could not get round the medical evidence. But, this evidence in damaging to the prosecution case and in view of this evidence, the plea of self-defence raised by the responden cannot be ruled out. In any event it was not necessary for the respondent to prove this plea and on the other hand as the evidence of the two eye- A witnesses and the dying declaration of the deceased are not fit to be accepted without corroboration and as there is no corroboration of this evidence, it is clear that the prosecution has failed to prove the respondent's guilt. We, therefore, dismiss the appeal. The respondent shall be released forthwith unless required on any other charge.