MUHAMMAD ZAFARULLAH, J.---Waris, his son Zakir and his nephew Sikaudar respondents were tried alongwith the mother of Sikandar (sister of Waris) for the murder of Kausar Parveen a girl of 7 and murderous assault on her sister Mst. Khalida Ameena Khanam P. W. And a murderous assault, on Shahbaz P. W. All the four accused persons were acquitted by the order of Sh. Abdul Waheed, learned Sessions Judge, Sheikhupura dated 27th February, 1971. The State has filed an appeal praying that the order of acqaittal in respect of Waris, Zakir and Sikandar respondents be set aside and the respondents be punished in accordance with law.
2. According to the prosecution there was a family dispute between Shahbaz P. W. On the one hand and the respondents on the other, regarding the property of the father of Shahbaz P. W. Shahbaz's father Kaleem Ullah had married twice. Shahbaz was the only son of his own mother while Sikandar respondent is the son of Mst. Maqsoodan Begum the second wife of Kaleem Ullah. She was a co- accused of the three respondents. According to Shahbaz. P. W. Who lodged the F: I. R. Mst.
Maqsoodan his step-mother was out to grab the property of her husband for herself and for the benefit of her brothers and sons and for that reason had been trying to get rid of the complainant.
There had been an earlier assault on Shahbaz P. W. And the accused were convicted under section 307, P. P. C. The accused, relatives of Mst. Maqsoodan, were acquitted on appeal by the High Court.
Shahbaz has stated in the F. I. R. As well as in his evidence at the trial that a few days before the present occurrence a compromise had been struck between the parties and a settlement of the property had been made between them, as a result of which he was withdrawing from prosecuting the brothers of Waris appellant. But this agreement proved to be a fraud and the respondents attacked him in order to murder him. Regarding the occurrence itself it has been stated that on 31st January, 1968 at about 11-30 a. m. Shahbaz complainant was going towards his house from the Market Committee in Muridke in the company of Shabbir, Anwar, Rehmat and Nazir P. Ws. When Waris, Zakir and Sikandar respondents appeared. They were all armed with revolver Waris opened fire at the complainant and subsequently all the three assailants started firing at him. They were being urged to kill the complainant by Mst. Maqsoodan their co-accused. The complainant took shelter in the shop of Muhammad Amin P. W. And entered the house of Muhammad Amin through the shop. The three respondents, however, chased him into the house and continued firing at him.
During this firing two girls (Mst. Kausar deceased and Mst. Khalida P. W.) were injured. The assailants then caught hold of the complainant and caused injuries on his person with the butts and barrels of the weapons they were carrying. The assailants then left the place of occurrence.
Mst. Kausar died within a few hours after receiving the injuries. Mst. Khalida who received as many as nine fire-arm injuries survived the attack. Shahbaz P. W. Had received three injuries. Injury No. 3 consisted of multiple contused wounds 8 to 10 in number on the top of his skull. All the injuries on the person of Shahbaz P. W. Were simple except for injury No. 1 which was declared as grievous on X-Ray examination. Injury No. 1 was a swelling on the base of the second finger on the dorsum of the left hand.
3. The prosecution relied on the evidence of eye-witnesses. Four of them were produced at the trial.
They are Mst. Khalida Ameena Khanam (P. W. 11), the sister of the deceased, Mst. Aisha Saddiqa (P.
W. 12) the mother of the deceased. Muhammad Amin (P. W. 13) the father of the deceased and Nazir Ahmad (P. W. 14).
4. Nazir Ahmad P. W. 14 testified only to what happened outside in the lane as he did not enter the shop or house of Muhammad Amin P. W., where Shahbaz P. W. Had taken shelter. Nazir has stated that he had accompanied the complainant from the Market Committee alongwith Anwar and Rehmat and they were going towards Shahbaz's house, when Waris, Sikandar and Zakir respondents attacked the complainant and fired at him. Shahbaz P. W. Entered the house of Muhammad Amin and the others stayed outside.
5. What happened inside the house has been testified to by Mst. Khalida, Mst. Aisha and Amin P.
Ws., the inmates of the house. As stated above, Mst. Khalida was also injured during the occurrence. She was about 10 years of age at the time of occurrence. Her mother and father had witnessed the occurrence from the courtyard and the shop respectively but have not been injured.
These three witnesses have stated that the respondents chased the complainant into their house and kept firing at him. The complainant was not injured by firing as he had taken shelter behind the plank of a door, but Mst. Kausar deceased and Mst. Khalida P. W. Received injuries during the shooting.
6. The piece of lead recovered from the body of the deceased has been described as a pellet by the Fire-Arms Expert, Muhammad Sarwar Khan (P. W. 22). It is not a bullet as stated by the doctor. It is likely that both the girls were injured by a single shot. Mst. Kausar deceased received the injuries while she was sitting and was shot in the head which killed her but Mst. Khalida escaped with her life as she received injuries on her legs as possibly she was standing at that time.
7. All the injuries on the person of Shahbaz complainant have been caused by blunt weapon.
Shahbaz has explained that they have been caused by butts and barrels of the weapons that the assailants were carrying. He has received no fire-arm injury even though it was Shahbaz who was the real target of the assailants, although an innocent girl was killed in the process and another injured.
8. Regarding the ocular evidence it is curious that out of four eye--witnesses named in the F. 1 R.
Only Nazir has been produced and the three other eye-witnesses produced were not mentioned in the F.I.R. As eyewitnesses. Shabbir, Rehmat and Anwar were given up as being unnecessary. These three were produced nevertheless before the Commit--ting Magistrate but were found to be unnecessary at the trial. On the other hand Mst. Khalida and her parents Mst. Aisha and Muhammad Amin P. Ws. Have appeared at the trial as well as before the Committing Magistrate although they- had not been named in the F. I. R. Muhammad Amin, Mst. Aisha and Mst. Khalida would be the natural witnesses as the occurrence tool place their house. Strangely enough they were not mentioned in the F.I.R. Mst. Khalida P. W. Would have been the most important witness in the case as she was the only independent person whose presence could not he excluded, if she had been permitted to tell the truth. She has stated that on receiving the injuries from the back she fell unconscious and regained consciousness only in the truck. She has also stated that when the accused fired at them while standing at the threshhold she became unconscious and did not know what happened next. She also stated that it was correct that she did not see Shahbaz P. W. Being injured. She was confronted with her statement she had made before the Committing Magistrate and she denied having stated before the Committing Magistrate that her mother was not present in the house and that her father had gone out of the house on seeing the accused but that was found recorded in her statement before the Commit--ting Magistrate.
9. Mst. Aisha (P. W. 12) the mother of the deceased has supported the prosecution at the trial but had admittedly made concession in favour of the accused before the Committing Magistrate. She admitted that she did make such a statement before the Committing Magistrate but explained that she did so out of fear of the accused. Amin (P. W. 13) the father of the deceased has supported the story of the prosecution but has stated that he saw the entire occurrence from his shop. His conduct of not entering the house while two of his minor daughters were injured by gun shots is not understandable. The learned counsel for the respondents has also taken us through the site plan. It does not seem likely from the site plan that the witness could see what was happening in a room to the north of the shop with a courtyard intervening.
10. Shahbaz P. W. Has described the occurrence in his own way. He has supported the story which he narrated in the F. I. R. But the assault on his person does not find a logical explanation. He has received only simple injuries except for a fracture on his finger. He has received injuries only with a blunt weapon while three of his assailants were armed with fire-arms. He has stated that possibly the assailants had exhausted their ammunition. If they had really intended to kill Shahbaz, there was nothing preventing them from doing so in that situation, even if they had run out of their ammunition.
11. Nazir (P. W. 14) has not stated anything about the injuries to Mst. Kausar and Mst. Khalida, as according to him, he was standing in the lane and had not entered the house. It has also been pointed out that he is an interested witness as he is closely related to the complainant. His son is engaged to the daughter of Shahbaz complainant. Nazir has stated in his examination-in-chief that his niece Mst. Bushra was married to Abdur Rahman a younger brother of Waris respondent.
He has stated so only to show that he is an independent witness as he is related both to the accused and to the complainant. This will not be enough to prove his independence, as in any case the relationship with Shahbaz P. W. Through his son should be closer to him than the one with Waris's brother, through his piece. Even otherwise Nazir has seen nothing except ineffective firing outside in the lane.
12. Zakir respondent was found to be injured when he was arrested and he was medically examined. In his statement under section 342, Cr. P. C. He has explained that he received this injury because he had a fall two days before the occurrence. The prosecution, however, has not offered any explanation for his injury. This aspect could have thrown some light on the true facts as in case Zakir had received injuries during the occurrence his presence at the spot could not be excluded.
On the other hand, if the injuries were received by Zakir respondent during the occurrence then one of the witnesses would have been responsible for these injuries. The only person who could have caused these injuries would be Shahbaz P. W., the other two persons being injured small girls. It appears that Shahbaz P. W. Did not want to commit himself to this position.
13. The ocular evidence produced by the prosecution is not reliable; As pointed out above, the only eye-witness produced at the trial out or the four mentioned in the F.I.R. Is an interested witness. The three other eve-witnesses produced were not mentioned in me F.I.R. These three also cannot be believed, as they keep shifting their position, from that of their previous statements before the Committing Magistrate as well as making concessions at the trial. No conviction can be based on such evidence. The appeal, therefore, fails and is dismissed.