MANZGOR HUSSAIN SIAL, J.-Mohammad Afzal 40, Sardar Bahadur (45), Ajmal alias Khaja (27), Faqir Hussain (51) and Faqir Mohammad (40) were tried under sections 302, 148 and 149, P. P. C. By the Additional Sessions Judge. Attock (Campbellpur) for committing rioting and in prosecution of their common object causing the murder of Mohammad Bashir. Faqir Mohammad accused could not survive the trial and died before the announcement of judgment. The learned trial Judge vide his judgment dated 13March, 1970 acquitted all the accused. The State assailed the order of their acquittal by means of the present appeal, while the complainant Sardar Khan also filed Cr.
Revision No. 1190 of 1970 and sought retrial of the accused respondents. This was ordered to be taken up alongwith the appeal. By this judgment we propose to dispose of both the matters together.
2. Learned counsel for the parties, at the very outset, informed this Court that Sardar Bahadur and 1-aqir Hussain respondents lead died during the pendency of the appeal The State appeal had consequently abated as against them.
3. The prosecution case, in brief, as disclosed by Sardar Khan (P. W. 16) in his statement (Exh. P. B.) is as follows:-
4. On 21st May, 1968 at 8-30 p.m. Faqir Hussain accused contacted Mohammad Bashir deceased and told him that he was wanted by Mohammad Afzal accused to settle accounts pertaining to the sale price of the ancestral property. The complainant and his son Mohammad Azam (P. W.), being relation of Mohammad Bashir, accompanied him. When they reached near the hujra of Mohammad Afzal accused, they came across Daud and Shaib Khan P. Ws. These witnesses stood outside the hujra of Mohammad Afzal while Mohammad Bashir deceased and Faqir Hussainth entered the hujra. It is stated that when Mohammad Bashir was seen by Mohammad Afzal, the latter challenged him for earlier abuses uttered by him and thereupon Faqir Hussain accused caught hold of the deceased. Mohammad Afzal picked up an iron bar and gave a blow on the face of the deceased. Ajmal accused started inflicting knife blows on the deceased. The other accused present there also caused injuries to him. Sardar Bahadur accused gave toka blows on both arms of the deceased, while Faqir Hussain accused gave a T-iron blow to the deceased. Mohammad Afzal accused got hold of a revolver being carried by Bashir deceased under his shirt. Thereafter the accused left the hujra and the prosecution witnesses entered the hujra and found Mohammad Bashir deceased lying in an injured condition.
5. The motive of the occurrence was that Mohammad Bashir was to have some amount from Mohammad Afzal accused pertaining to the sale of his ancestral property which had been taken by Afzal accused from one Firdaus.
6. Sardar Khan P. W. On 21st May, 1968 at 9.00 p.m. Lodged the first information report (Exh. P. B.) at Police Station, Hazro which was recorded by Mohammad Shall, A. S. I. (P. W. 20). The Police Officer immediately reached the spot and prepared the injury statement of Mohammad Bashir (Exh. P. A.
A.) and sent him to the hospital where he expired at 11-30 a.m. On the following day. On having received informa--tion of his death, the Investigating Officer went to the hospital and prepared the inquest report (Exh. P. A./B.) and despatched the dead body for post-mortem.
7. Dr. Ghulam Ahmad who had examined Mohammad Bashir when he was alive and after his death conducted autopsy on his dead body, found in all thirty-four injuries, out of which twenty one were incised wounds while the rest were abrasions and contusions. He found injuries Nos. 1, 2, 4, 16, 18 and 20 grievous and the rest simple. According to him the time between the death and the receipt of injuries was nine hours and between death and post-mortem six hours.
8. The doctor also examined Faqir Hussain and Ajmal Khan accused end found three abrasions and two abrasions on their persons respec--tively.
9. The accused pleaded not guilty and explained their involvement in the case on account of enmity. Mohammad Afzal accused pleaded alibi and said that at the relevant time he was at Lahore. On the other hand, Muhammad Ajmal stated that the deceased was dead drunk, carried loaded revolver in his hand and had forced his entry in the hujra by pushing the gate window. He further stated that at that time Faqir Hussain was sitting with him in the courtyard of Mohammad Afzal's hujra along with seven or eight persons including some guests. Mohammad Bashir in that state of condition, fired in the courtyard which attracted many persons (which created confusion and commotion) and some persons caused injuries to him.
10. The prosecution evidence consisted of the ocular version given by the eyewitnesses. The medical evidence, the evidence of motive and recoveries.
11. The trial Court disbelieved the ocular version, rejected the motive and found medical evidence to be of no avail to the prosecution.
12. Learned counsel for the appellant (State) has contended that the ocular evidence in this case cannot be brushed aside simply for the reason that Sardar Khan and Azam Khan P. Ws. Were related to the deceased and Sahib Khan was declared hostile. He emphasised that reliance can be placed on the testimony of Daud Khan who was not related to the deceased and was an independent witness.
13. On the contrary learned counsel for the respondents contended that the eve-witnesses in this case being interested and partisan, no reliance can be placed on their evidence for passing valid order of conviction on capital charge. He also contended that no corroboration is available to the testimony of eye-witnesses.
14. We have heard learned counsel for the parties at length and have also perused evidence on the record with reference to submissions made by them at the Bar.
15. The ocular version has been given by Sardar Khan and his son Azam. Both of them being related to the deceased, their evidence there--fore, would require cautious appraisal. It is interesting and significant to note that even these witnesses had contradicted each other on material points.
Sardar Khan stated that the gate of Afzal Khan's hujra was were open and he witnessed the occurrence from there, while Muhammad Azam maintained that the gate was closed and the occurrence was seen through the window of the gate. Mohammad Azam did not mention the name of Daud (P. W,) to have met him outside the gate, or that he had also seen the occurrence.
The presence of Mohammad Azam, a school-going student at Rawalpindi, at the scene of occurrence is not free from doubt, because, of his unusual arrival in the village at the relevant time.
16. Daud Khan and Sahib Khan P. Ws. Were admittedly chance witnesses. Sahib Khan was declared hostile. Daud Khan had admitted that he was twice tried for an offence under section 182, P. P. C.
And convicted once. It has also come on record that Daud Khan had contested election against Mohammad Afzal accused in which he defeated his oppo--nent. It was also admitted that Daud Khan appeared as a defence witness for Sahib Khan P. W. In a case under section 325, P. P. C. And Sahib Khan was acquitted. It is thus, apparent, that Daud Khan was not independent witness, rather inimically disposed against Mohammad Afzal accused. Consequently, no reliance can be placed on the evidence of Sardar Khan, his son Azam Khan and Daud Khan P. Ws. Without sufficient corroboration available, from evidence of unimpeachable character.
17. As for corroboration, we find, that motive set up by the prosecution could not be proved because no documentary evidence was brought on the record regarding the sale of the ancestral property.
Even Firdaus. Who could have testified the settlement of accounts as alleged by the prosecution was not produced. Mohammad Safdar, A. S. I. Who reported to be another aggrieved person, was not examined as witness for the prosecution. The complainant in the F. I. R. Stated that altercation had earlier taken place between Mohammad Bashir deceased and Mohammad Afzal accused in Bazar, but none was produced to prove this incident., which could have furnished immediate motive for the occurrence.
18. Motive is not always a condition precedent for conviction on a capital charge because of the existence of motiveless murder and murders wantonly committed with mysteriously hidden motive, but it is well settled that once the prosecution 'sets up a particular motive then onus lies on it to prove it. The factum of its non-proof or having it proved false, throws shadow of doubt on the entire prosecution version and the Court has to scrutinize the remaining evidence more cautiously.
19. T he evidence of recoveries also does not provide adequate corroboration to the ocular evidence. Abdul Qayyum was not produced to prove the recoveries. The other witness is Mohammad Saleem, who is not only real brother of the complainant, but also has materially contra--dicted the Investigating Officer. Mohammad Saleem P. W. Admitted in cross-examination that all the four accused were brought together to the place of recovery and that the weapons were lying within a radius of 5 to 6 feet in the Tobacco Crop of Makhan Khan, whereas Mohammad Shafi had stated that the accused had come to the place of recovery one by one and the recoveries were separately effected. If it is believed, that all the accused were taken together, to the place of recovery and the recoveries effected simultaneously, no legal sanctity could be attached to such recoveries, because it would necessarily follow that weapons were already brought on the spot and the accused were taken there to plaint the same on them. Furthermore, the presence of Mohammad Bashir deceased armed with revolver in the Hujra of Mohammad Afzal accused remained unexplained by the prosecution. The defence version, that Mohammad Bashir while armed forced his entry in the Hujra rings true. The prosecu--tion could not categorically prove, that the eye-witnesses had seen the occurrence, in the Hujra as they themselves admitted that they stood outside, and entered only when they saw the deceased lying injured and the accused had decamped.
20. After going through the evidence on the record we are of the view that the ocular evidence is not worthy of credence, as it does not find corroboration from motive or evidence of recoveries. In any case, having discarded the ocular evidence, the mere existence of medical evidence would be of no significance.
21. The upshot of the above discussion is that the prosecution had failed to prove its case against the respondents beyond reasonable doubt. They were rightly acquitted by the trial Court. We find no force in this appeal and dismiss it.
22. For the reasons recorded above, the petition for criminal revision is also dismissed in limine.