This is a revision petition filed by Jugga, father of Yaqub deceased, against te decision of a learned Additional Sessions Judge of Sahiwal dated 29th April, 1967 acquitting Bashir, Sharif Asghar and Parkash, respondents Nos. 1 to 3, of a charge of murder under sections 302/34, P. P. C.
2. The brief facts of the case are that on 10th May, 1966 shortly before sunset, Yaqub deceased alongwith Jugga P. W. 5, Inayat P. W. 6, Khurshid P. W. 7 and Babu P. W. (not produced) were draining out the rain water from the lane, which was near the crossing of Mohallah Farid Ganj, Sahiwal, and Mst. Kaki P. W.' 8 and Mst, Fazlan and Mst. Alice P. Ws. (not produced) were filling water in their pitchers from the well, which was near the crossing of Mohallah Farid Ganj. The said well was close to the place where the above-mentioned persons were working. Bashir accused came there and started staring at the girls. Mst. Kaki P. W. 8 complained to her brother Yaqub deceased that Bashir accused was teasing them. Bashir accused had also offered his services to the said girls that he could help them in bringing out the water from the well. Yaqub, deceased asked Bashir accused to go away. Bashir accused refused to do so. Yaqub deceased pushed Bashir accused, who fell down in the mud and his clothes got spoiled. Bashir accused got up. He abused Yaqub deceased and told him to remain there and that he would teach him a lesson. Bashir left the spot.
Half an hour after the said incident, Bashir accused returned to the spot alongwith his brother Sharif and his sister's husband Parkash accused. Bashir accused had an open knife in his hand.
Parkash accused held Yaqub deceased by his waist. Sharif accused told his brother Bashir accused to inflict knife blow and as a result of that instigation Bashir accused thrust the knife into the chest of Yaqub deceased on the left side. The occurrence was witnessed by Jumga P. W. 5, Inayat P. W. 6, Kburshid P. W. 7 and Mst. Kaki P. W. 8 and Babu, Jhanda, Mst. Fazlan and Alice (P. Ws.
Not produced). After the occurrence, the accused ran away Yaqub deceased was alive at that time. He was placed on a cot and carried to the D. H. Q. Hospital, Sahiwal. Yaqub died on reaching the hospital at about 7-30 p. m.
3. On the ruqa sent by the Medical Officer to the Police, Atta Muhammad A. S.-I. P. W. 12 reached the hospital and there recorded the statement Exh. P. E. Of Jugga P. W.
5. On the basis of the said state- -ment, formal F. I. R. Exh. P. E./I was recorded at Police Station Saddar Sahiwal at 9 p. m. The same day by Asghar Ali Shah M. H. C. The Investigating Officer then prepared the necessary papers and sent the dead body to mortuary. He then proceeded to the spot, reaching the place of occurrence, he took into possession blood-stained earth from the spot vide memo Exh. P. B. He arrested the three accused the same night from their houses. Bashir accused whilst in custody led to the recovery of blood-stained knife P. 4, which was wrapped in a gunny bag, from his room, which was taken into possession by the Police vide memo Exh. P. C. In the presence of Muhammad Anwar P. W.
9, Muhammad Afzal P. W. 10 and Atta Muhammad S. I., P. W. 12.
4. On 11 May, 1966 at 10 a. m. Dr. Ghulam Rasool conducted the post-mortem examination on the dead body of Yaqub Masih deceased and found one stab wound 3/4" x 1/3" on the middle and front of left chest, 1 ----- to the inner side of the nipple and 2 ----- to the left side of the middle line. On dissection, the stab wound was found to have passed between the 4th and the 5th ribs. Pleura left lung, pericordium and heart were punctured. The death was caused due to shock and haemorrhage as a result of the said injury; which ante-mortem injury was found to be sufficient to cause death in the ordinary course of nature.
5. After completing the investigation, the challan against the accused was sent up.
6. The prosecution produced Jugga P. W. 5, Inayat P. W. 6, Khurshid P. W. 7 and Mst. Kaki P. W. 8 in proof of the motive and the ocular account, Muhammad Anwar P. W . 9, Muhammad Afzal P. W. 10 and Atta Muhammad S. I., P. W. 12 to prove the recovery and Dr. Ghulam Rasool P. W. 1 to corroborate the medical testimony.
7. At the trial, Sharif and Parkash accused stated that they had been involved falsely on account of enmity and that they were not present at the spot. Bashir accused stated that he was passing on bicycle, when Yaqub deceased and 4/5 persons were removing the rain water from the street and levelling the ground. On account of the speed of the bicycle, the clothes of Yaqub deceased were spoiled due to the sprinkling of the water. Yaqub deceased got enraged and gave him a slap and push in anger. A quarrel took place between him and Yaqub deceased. Yaqub deceased had a kassi at that time and wanted to inflict a kassi blow on his neck. He got aside and stabbed the deceased in self-defence. Other persons attacked him, but he ran away.
8. The learned trial Judge held that the motive did not stand proved, that Mst. Kaki P. W. 8 and Mst.
Fazlan and Mst. Alice (given up P Ws.) came to the spot after the occurrence and Jugga P. W. 5, lnayat P. W. 6 and Khurshid P. W. 7 were untruthful witnesses, whose state--ments could not be relied upon and that the defence version was plausible and, therefore, he acquitted the accused.
9. I have heard the arguments of the learned counsel for the petitioner, the accused/respondents and the State and have also perused the record. I would not like to analyse in detail the evidence on record lest any observations that may be made by me may influence the mind of the trial Judge, in case this case is sent back to the Sessions for retrial. However, I find that the evidence as regards motive is shaky and the presence of Mst. Kaki P. W. 8, and Mst. Fazlan and Mst. Alice (given up P. Ws ) at the spot appears to be trumped up and I would endorse the findings of the learned trial Judge given in that respect, but I disapprove the findings given as regards the remaining three eye--witnesses being so totally untruthful that no reliance can be placed on them. The ocular account given by Jugga P. W.
5. Inavat P. W. 6 and Khurshid P. W. 7 is consistent. According to their testimony, they with Babu (given up P. W.) and Yaqub deceased, were removing rain water. Jhanda P. W. Was sitting in front of his house. Mst. Kaki P. W. 8 and the other girls were present at the wellth with their pitchers. Bashir respondent strolled near the well and stared at the girls. Yaqub deceased told Bashir respondent to go away, who refused, whereupon the deceased' pushed the respondent, who fell down in the mud and his clothes got spoiled. Bashir respondent abused the deceased and left the spot stating that he would see to this matter. After about 20/25 minutes, Bashir, Sharif and Parkash respondents came there. Bashir respondent had an open knife in his hand. Parkash held the deceased by the waist. Sharif respondent asked Bashir respondent to give a knife blow, where- -upon Bashir respondent gave a knife blow to the deceased in his chest. The occurrence was witnessed by the said three witnesses and the girls. The deceased fell down and the respondents ran away. The said three eye-witnesses were held to be untruthful and unreliable by the trial Judge for inter alia the following reasons
(i) That these eye-witnesses in complicity with Mst. Kaki P. W. 8 and Mst. Fazlan and Mst. Alice (given up P. Ws.) had falsely intro--duced story of motive, which ultimately was discovered and found to be untrue during the cross-examination of these and other witnesses.
(ii) That each one of them had introduced the presence of Mst. Kaki P. W. 8, Mst. Fazlan and Mst.
Alice (given up P. Ws ) as witnesses to the occurrence, whereas Inayat P. Ws. 6 admitted in cross-- examination that the said girls came to the spot after the occurrence.
(iii) That Jugga P. W. 5, in cross-examination, denied his relationship with Jhanda P. W., which he had admitted before the C. M.; that he had not mentioned in his police statement Exh. P. E. That Jhanda was present in front of his house, though he stated the same at the trial ; that he stated that he was working at the time of the first incident and also at the time of murder, whereas according to Inayat P. W. 6 and Khurshid P. W. 7 he was not working but was sitting close to Jhanda P. W.; and that he did not go to the Police Station for lodging the F. I. R., but waited till the Police recorded the same in the hospital.
(iv) That Inayat P. W. 6 in his cross-examination mentioned that lie had told the police that Jhanda P. W. Had seen .The occurrence gad that the three girls also saw the occurrence, whereas it was not so recorded in his police statement Exh. P. A.; that he stated in examination-in-chief that Mst. Kaki P.
W. 8 and Mst. Fazlan and Mst. Alice (given up P. Ws.) saw the occurrence but in cross-examination he affirmed that the girls came to the spot afterwards; and that in examination-in-chief he stated that the deceased and the witnesses had no kassis, whereas before the Committing Magistrate he had admitted that Babu (given up P. W.) and Khurshid P. W. 7 had kassis with them.
(v) That Khurshid P. W. 7 in examination-in-chief stated that lugga P. W. 5 and Jhanda P, W. Were sitting together at the time of occurrence, but he was contradicted by Jugga P. W. 5 and Mst. Kaki P.
W. 8 who stated that Jugga P. W. 5 was working at the time of occurrence and that he stated that Babu (given up P. W.) had no kassi, but he admitted before the Committing Magistrate that Babu (given up P. W.) had a kassi.
It is true that these three eye-witnesses Trumped up a false story regarding motive and also tried to introduce the three ladies as eye--witnesses to the occurrence, which, attempt was discovered, but the fact remains that these three witnesses were present at the spot, which is also admitted by Bashir petitioner in his statement under section 342, Cr. P. C., and the minor contradictions stated in sub-pares. (iii) to (v) appear to be rather superficial for the purposes of branding them as totally untruth--ful and unreliable. The witnesses are related to the deceased and inter se themselves but this by itself does not mean that they are in--terested witnesses. Nothing has been brought out in cross-examination to suggest that any of these three eye-witnesses were inimical to any of the respondents or had any animus against them, so as to falsely involve them on a capital charge of murder. In these circumstances, the minor contradictions pointed out by the learned trial Judge for the purposes of branding the said three eye-witnesses as totally un--truthful and unreliable is an unbalanced finding, not supported by proper and rational appraisal of the evidence. The prosecution version and the defence case were not appraised in juxtaposition to each other. The judgment of acquittal is, therefore, not sustainable and has resulted in a grave miscarriage of justice. The judgment of the learned Addi--tional Sessions Judge is, therefore, set aside.
10. The only question that now remains is whether a retrial should be ordered. The occurrence took place in 1966. Fourteen years have now passed. If this case is sent back for retrial, it is doubtful whether all the eye-witnesses or the recovery witnesses will be available and, if so, will support the prosecution case. This revision petition was admitted in 1968. Twelve years have passed since then and the respon--dents since that time have suffered the agony of its apprehended ac--ceptance, which alone is sufficient mental torture and punishment. Taking all factors into consideration, I do not consider this to be a fit case for ordering a retrial.
11. For the foregoing reasons, I would accept this revision petition and set aside the judgment of the trial Judge dated 29th April, 1967, but in view of the reasons given above, do not make any order as regards the retrial of the case. The respondents are on bail. Their bail bonds shall stand discharged.