1. This is a revision against acquittal filed by Photo. At 6-50 a. m. On 22nd April, 1976 P. W. Photo filed an F. I. R. With Badeen Police Station alleging that at 12-30 in the night of 22nd April, 1976 while he was sleeping in the house of his brother-in-law Nazar Ali, he heard gunshot report and were up to find that Jamal assailant armed with a gun and Haji Nihal assailant armed with hatchet and one unknown roan armed with a pistol were standing near the cot of Nazar Ali, who was lying injured. He identified them in the light of lantern, which was burning P. W. Loung, P. W. Mst. Sain and P. W. Mst.
2. Hajani were also sleeping in the house at that time and they identified the assailants. The motive for the murder mentioned was that Mst. Muradan niece of the complainant had been abducted by Dodo brother of the two assailants some time back and deceased Nazar Ali had tried to prevail upon the accused to restrain her which had antagonised the assailants.
3. The prosecution had proved his case by examining the complainant Photo who was brother-in-law of the deceased, P. W. Sarang who was father-in-law of the complainant. P. W. Shido who was the caste-fellow of the deceased as well as in service with the deceased and was grazing the cattle of the deceased at 12-30 in the night, P. W. Loung who was the nephew of the deceased and was sleeping in his house at the relevant time and Mst. Hajiani were of the deceased. The learned Judge did not place reliance on these P. Ws. As he found that they were related to the deceased and were interested. The judgment in respect of these witnesses has rather fragmentary however, I have seen the statements of Photo and Mst. Hajan and I do find that they have shown that the accused/ assailants had a motive against Nazar Ali. Since, the motive is a double-edged weapon, therefore, complaining party could also have motive in falsely involving the assailants, therefore, the learned Sessions Judge was not wrong in got placing absolute reliance on the statements of these P. Ws. P. W. Photo bad admitted that P. W. Sarang was his father-in-law, while Mark was his brother-in-law. Mst. Hajan had admitted that Shido was in her service and Shedo and Sarang look after their cattle. P. W. Murad who was the masher of recovery of one crime empty from the wardat and gun produced by assailant Jamal bad admitted that be was cousin of Mark therefore, he was also related to complainant Photo as Mark was brother---in-law of Photo.
4. The learned. Sessions Judge has criticised the F. I. R. As having been delayed. Mr. Niazi for the applicant submitted that there was no such delay, however, I do find that the place of wardat being only 3 miles away from the police station, the same distance could have been covered in 2 hours but the F. I. R. Was filed after 6 hours and 20 minutes of the incident, therefore, delay of about more than 3 hours remained unexplain--ed. Mr, Niazi submitted that the complainant must have waited during night on account of fear, and therefore, started early morning. But, I find that the complainant must have started at about 5 o'clock to the night. The complainant has not given such explanation that he could not start for the police station on account of fear during the night.
5. Since, the delay is involved in the F. I. R. Therefore, it may be possible that there had been some deliberation before the filing of the F. I. R. In fact the complainant is not the resident of the village of the deceased and his presence at the time of the incident in the house of his brother-in-law is not natural and it could be possible that he may have been summoned by his sister through her brother-in-law from his own village which Is half a mile away from the village of the deceased. In any case the criticism about the delay in the F. I. R. Is not completely unjustified.
6. Mr. Niazi further submitted that mere relationship with deceased was not enough to condemn a witness. That is a correct proposition of law put forward by Mr. Niazi but in this case, since, there is a dispute between the parties in respect of Mst. Muradan, therefore, the possibility of false involvement could not be excluded. I find that the learned Sessions Judge bas failed to believe identification on the basis of flickering lantern and that does not seem to be an absolutely perverse view as there is only one gun injury upon the deceased and since, all the P. Ws. Stated that they were up on the gun report there must have been a good deal of confusion at that time, and therefore, the identification may have been somewhat difficult.
7. Mst. Sain the mother of the deceased was cited as P. W. And she was not examined. The learned Sessions Judge has drawn a presumption against the prosecution on account of her non- examination. That presump--tion has correctly been drawn as provided under section 114 of the Evidence Act. The most important aspect of the case is the recovery of a crime empty on the vardat in presence of mashir Murad coupled with the recovery of licensed gun at the instance of respondent Jamal supported by the report of Ballistic Expert who gave a positive report that the crime empty matched with the gun. The learned Sessions Judge disbelieved the recovery of the crime empty as he found mashir Murad to be untrust--worthy as he was related with Photo. The relationship is established as Murad is cousin of Mark who is admittedly brother-in-law of complainant Photo, I also find that Murad has also acted as mashir in respect of every Mashirnama in the case including the arrest of Haji Nihal, arrest of Jamal which was effected after about one month as well as of the Memo, of production of gun by respondent Jamal which was on the next day of his arrest. When mashir Murad is 'not the resident of that village and is still acting as mashir for every Memo, it does show that he was quite interested in the prosecution, therefore, the remark of untrustworthiness about this witness was not without substance. The learned Sessions Judge was also of the view that since the crime empty was not mentioned in the F. I. R. And no P. W. Had stated that the respondent Jamal had emptied a cartridge at the vardat, therefore, the recovery of the crime empty from the wardat was not free from the doubt. The learned Sessions Judge also took adverse view of crime empty and the gun having been sent to the Ballistic Expert after 2 months without a proper explanation for the same. He relied on Muhammad Hafeez v. State (1978 P Cr. L J 57) where 41 days' delay in sending the blood-stained toka to Chemical Expert was regarded as a circumstance creating a doubt in respect of recovery. He also relied on Allahando v. State (1969 SCMR 714) where the Supreme Court held that the report of Ballistic Expert was of no consequence where the gun and crime empty had been sent to the Ballistic Expert after 4 months and where the sealing of the crime empty had taken place after a week of their recovery. The view that the Sessions Judge took was, therefore, in consonance with the view of Lahore High Court and also supported by the observations of the Supreme Court and was, therefore, not a completely untenable view. Lastly, the Sessions Judge considered that the absence of independent P. Ws.
8. Created a doubt. I have seen that one of the P. W. Mst. Hajan stated that there are 15 houses in their village, and therefore, it was in the fitness of things, in view of the admitted animosity between the parties, to examine independent P. Ws. Of the village in order to establish the presence of at least those persons who happened to be in the house of deceased by chance namely P. W. Photo and P.
9. W. Loung as well as the presence of Shido and Sarang who were alleged to be grazing cattle at mid-night one of whom was a servant and the other a close relation. Thus, their statements do not have that value which they could have if indepen--dent P. Ws. Had corroborated their statements.
10. The view of the Sessions Judge requiring the examination of independent P. Ws. Is therefore, not far wrong.
11. The revision application, is therefore, dismissed.