Seven respondents and their two co-accused, Shah and Isa absconders, were accused for the murder of Amir Ali, Respondents Nos. 1 to 7 were tried for offence under sections 302/ 149, 429/ 149 and 148, P. P. C. The Additional Sessions Judge, Sheikhupura, on 14th September, 1.968, acquit--ted them of all charges. Hussain Ali first informant P. W. Filed this revision to set aside their acquittal which shall be disposed of by this judgment.
2. On 24th May, 1967 at about 7 a. m. Amir deceased on a mare accompanied by his son, Hussain Ali first informant (P. W. 1) and his attendant, Khan P. W. Left their village Thatha Sheikhan and had covered distance of 4 squares towards Chak No. 6 when nine accused including seven respondents emerged from behind reeds and attacked the deceased. Shah, absconder fired from his rifle which hit the mare on which the deceased was riding as a result of which the deceased fell down and the mare ran away. After the deceased had fallen on the ground Anwar respondent fired from his rife from close range and hit the deceased on the right temple of head. Nazar respondent then tired from his rifle which hit the deceased on the right flank. Dosa respondent had a gun, Bashir and Amir Ali respondents carried a pistol each, Fattu respondent carried a hatchet, Wali Muhammad respondent was armed with a spear and Isa absconder also carried a gun but none of the respondents and Isa absconder allegedly used their weapons. Amir died at the spot. The occur--rence was also witnessed by Manzoor. P. W. Who was present in his field near the spot.
3. In respect of the above occurrence which took place at 7 a. m. On 24th May, 1967, Hussain Ali first informant got the F. I. R. Registered at Police Station Warburton at 10 a. m. On the same day after covering a distance of nine miles. After registering the F. I. R. At the Police Station Ch. Nur Muhammad S. H. O. (P. W. 18) went to the spot where he despat--ched the dead body after preparing the injury statement and inquest report. From the spot he took into possession blood- stained earth vide Memo. Exh. P. D. He secured a shoe (P. 1) left at the spot by one of the accused vide Memo. Exh. P. E. And also took into possession a Safa (P. 2) left at the spot by one of the accused vide Memo Exh. P. F. He secured a Khunda (P. 3) of the deceased vide Memo. Exh. P: G. And a turban (P. 4) of the deceased vide Memo. Exh. P. H. He took into posses--sion mare of the deceased vide Memo. Exh. P. J. And further secured blood-stained saddle (P. 5) and another part of the harness (P. 6) vide Memo. Exh. P. K. He prepared the injury sheet of the mare vide Memo. Exh. P.
Q. He arrested the accused in the case while Isa and Shafi became absconders. He recorded the statements of Khan and Manzoor eye--witnesses. After completing investigation Faiz Ahmad Khan (P. W. 4) challaned the respondents in Court.
4. Dr. Muhammad Bashir Ahmad (P. W. 14), Medical Officer, D. H. Q. Hospital, Sheikhupura, conducted autopsy on the dead body of Amir, aged 60 years, son of Bahawal, on 25th May, 1967 at 6 p. m. And recorded the following three injuries on it :-
(1) A lacerated wound 1" x 1--'' in the right temple If behind outer angle of right eye. The margins of this wound were blackened and inverted. There was tattooing of skin around this wound. The brain matter was coming out of this wound. The chadar on the head was also perforated and margins of the holes in this chadar were blackened.
(2) A lacerated wound 1--" x 1 in the right axilla in its lowest part. The margins of, this wound were averted. It was a perforated wound.
(3) A lacerated wound 1-- x -- on the back of right side of chest 4" below the inferior angle o0f scapula and 6" away from injury No. 2. The margins of this wound were abrased, blackened and inverted. The two wounds (No. 2 and No. 3 communicated with each other through the chest cavity).
There was a circular hole in the skull bone on the right temple under injury No. 1. The skull was also fractured at one margin of this hole. There was fracture of cribri form plate and floor of right anterial cranial fossa so that the right nostril was open from above. The brain under injury No. 1 was injured 6th to 9th ribs were smashed in the middle portion under injuries Nos. 2 and 3 and pleura was also injured there--under. Stomach of the deceased contained no food and his bladder was full of urine. In the opinion of the doctor Amir died of injuries Nos.1 to 3 which were individually and collectively fatal and were sufficient to cause death in the ordinary course of nature. All the injuries were by fire-arm. Injury Nos. 2 and 3 communicated with each other through the chest cavity. In cross-examination the doctor deposed that he could not tell the type of weapon whether rifle, pistol or shot-gun which caused injuries Nos. 1 and 2.
5. Dr. S. H. Zaidi, Veterinary Assistant Surgeon (P. W. 15) medi--cally examined the mare of Amir Ali deceased, on 25th May, 1967 at about 8 a. m., and found a big wound on the off side of the croup which was about 9" long and 5" wide and about 4" to 10'' deep. In the opinion of doctor it was caused by fire-arm. Dr. Khalid Mahmood Siddiqui (P. W. 16) conducted post-mortem examination on the dead body of that mare of Amir deceased, on 3rd June, 1967 at 6 p.m., and recorded same injury, 9" x 5" x 7" deep. In the opinion of doctor mare died on 3rd June, 1967 on account of peritonitis resulting from the septic wound caused by the gun shot.
6. The prosecution case disclosed in the F. I. R. As that about six months before the present occurrence Molina, father of Anwar respondent, had disappeared for which F. I R. Under section 364, P. P. C. Was got registered by Anwar respondent against Hussain Ali P. W. His brothers, Nur and Ghafoora, as well as his father Amir deceased and Ghauns which case was under investigation.
Again during the current year Nur, brother of Hussain Ali P. W., had taken on lease 11 square of land from Mst. Allah Jawai P. W. Which was under cultivation with Nur but Wali Muhammad, brother of the deceased husband of Mst. Allah Jawai P. W., had given it on lease to Muhammad Shafi absconder accused of the present case showing himself to be owner of that land. However, Nur did not deliver possession of that land to Muhammad Shafi absconder due to which the respondents and absconders became enemies of the complainant party and about 12 or 13 days earlier the parties had been proceeded against under section 107/151, Cr. P. C. Hussain Ali P. W. Then stated that on the day of occurrence at 7 a. m. He, his father, Amir deceased, and attendant Khan P. W. On mares left their village Thatta Sheikhan Dakhli for the Dhari of Shahadat P. W. In Chak No. 6 in order to pur--chase a bullock. The first informant and Khan P. Ws. Were following Amir deceased who was ahead of them. After they had covered a distance of about 4 squares the respondents and the two absconders co-accused surprised them from behind reeds. Shafi absconder, Anwar and Nazra respondents were armed with a rifle each, Fattu respondent had a hatchet, his son Amir Ali respondent carried a pistol, Dosa had a gun, Isa abscon--der also had a gun, Bashir respondent with a pistol and Wali Muhammad respondent with a spear attacked them. Shafi absconder fired at Amir deceased from behind which hit the mare on which the deceased was riding as a result of which the mare ran away after being injured and Amir deceased fell down. All the nine accused including seven respondents then raised Lalkara and reached near the deceased. Anwar respondent fired his rifle from close range on the right temple of Amir deceased and Nazra respondent also fired from his rifle on the right flank of the deceas--ed as a result of which Amir deceased died. The first informant and Khan P. Ws. Were empty-handed and did not proceed forward to rescue. The respondents as well as the two absconders escaped. The occurrence was also witnessed by Manzoor P. W. It was also stated in the F. I. R. That all the accused including the respondents believed that Amir deceased was their main opponent due to which the accused caused his murder.
7. At the trial prosecution examined Hussain Ali first informant (P. W. 1), Manzoor Ahmad (P. W. 2) and Khan (P. W. 17) as eyewitnes--ses out of whom Khan did not support and was declared hostile.
The motive was given by Hussain Ali first informant P. W., Noora (P. W. 5) and Mst. Allah Jawai (P. W.
6). The recoveries were proved by Akbar (P. W. 10) and the investigating officer, Ch. Noor Muhammad (P. W. 18).
8. The respondents denied the allegations and pleaded not guilty to the charges. They stated that they were implicated due to enmity.
9. The trial Court acquitted them on the ground that both the eye--witnesses Hussain Ali and Manzoor were interested against the respondents and their testimony was in conflict with the medical evidence and no independent corroboration of their testimony was forthcoming on the record.
10. 1 have been taken through the entire evidence in this case which I have myself read and considered in the light of the submissions made by the learned counsel for the parties.
11. Learned counsel for the parties have submitted that Wali Muhammad and Fattu respondents died during the pendency of the present revision. Therefore, this revision against them has abated.
12. In support of revision on behalf of Hussain Ali first informant learned counsel for the petitioner has pressed it against Anwar and Nazra respondents only and has argued that although the eye- witnesses Hussain Ali and Manzoor Ahmad were closely related with the deceased and were inimical towards the respondents their presence at the spot is established and their testimony is fully corroborated and the medical evidence supports it. It has been submitted that Hussain Ali and Manzoor Ahmad P. Ws. Are natural witnesses of the occurrence, the former was accompanying the deceased and the latter was present, in his field near the spot when the occurrence took place.
According to the learned counsel the eye-witnesses --deposed that Nazra respondent fired shot which hit the deceased on right flank and the medical evidence disclosed that injury No. 3 was on the back of right side of chest which was suffered after the deceased had fallen from the mare and was lying with his face towards the ground and in any case this difference was due to lack of observation and the method of description. It was further submitted that Hussain Ali and Manzoor eye--witnesses attributed two fires to the deceased, one by Anwar respondent and the other by Nazra respondent and although deceased suffered three injuries in all, injury No. 2 was a wound of exit and the trial Court was not right in finding that the eye-witnesses were not present and deposed on being told by others. Learned counsel submitted that motive part was admitted by the trial Court and so it corroborated the ocular evidence and that injury suffered by the mare of the deceased and consequent death of the mare was a corroborating circumstance. Learned counsel submitted that Khan P. W. Who resiled and was declared hostile had supported the prosecution before the committing Court due to which he could not be treated as a truthful witness against the prosecution on the basis of his testimony in the trial Court. It was lastly submitted that the conclusion drawn by the trial Court if nine persons had attacked two or three persons would have been injured is not correct because all may not have been attacked.
13. As against this learned counsel for accused respondents has submitted that since the petition has been pressed before this Court against Anwar and Nazra respondents only it is not a proper case for ordering re-trial of the respondents after a long period since 24th May, 1967 when the occurrence took place and because the acquittal was earned by the respondents 14 years ago, on 14th September, 1968. It was also submitted that no illegality in the order and no misreading of evidence has been pointed out and that the ocular evidence was in conflict with the medical evidence which disclosed that injuries to the deceased were caused by pellets and not bullets as alleged by the prosecution, due to which the trial Court was right in concluding that medical evidence did not support the ocular evidence. It was lastly submitted that co-accused of the reason--dents, Isa absconder, was subsequently tried and was acquitted by the trial Court vide copy of the judgment, dated 7th May, 1981, placed on this Court record now.
14. The prosecution examined three eye-witnesses to prove its case. Khan P. W. Did not support the prosecution, was declared hostile and was cross-examined by the prosecutor. His statement before the Committing Magistrate was transferred to the Sessions trial. I do not agree with the trial Court that he truthfully deposed at the trial. Before the Committing Magistrate Khan bad supported the prosecution while at the trial he showed his ignorance about the occurrence. His testimony is ruled out of consi--deration. Both the remaining witnesses are closely related to the deceased and are inimical towards the respondents. Hussain Ali first informant is real son of Amir deceased while Manzoor Ahmad P. W. Is son of the widow of deceased from her previous husband. Anwar respondent had included name of Hussain Ali P. W. In the F. I. R. Under section 364, P. P. C. Relating to the abduction of his father, Molina. If Hussain Ali was present at the spot he would not have been spared particularly when five of the respondents and the two absconders are alleged to have carried fire-arms. According to the very F. I. R. Registered at the instance of Hussain Ali and the prosecution evidence at the trial except Nazra and Anwar respondents no active role is attributed to rest of the respondents although three of them carried fire-arms. It appears that the net was enlarged and innocent persons were also roped in by the first informant initially and Manzoor Ahmad due to relationship supported it. It is undis--puted that enmity existed between the parties.
Therefore, I find that both the aforementioned eye-witnesses were interested against the respondents and it was not safe to base conviction of the respondents on their testimony without independent corroboration. Motive is a double-edged weapon and in the circumstances of the present case cannot be found to have corrobora--ted the ocular evidence restricted to the interested witnesses only. No e recovery of incriminating articles was made in this case to connect the respondents with the crime. There is no independent circumstance to corroborate the testimony of the two eye-witnesses. It is in evidence that the deceased was wearing a chadar around his neck which had been blood--stained and perforated at multiple places. The margins of its holes were blackened. The deceased was also wearing a cotton Kurta which was found to have four holes in it. As such it is probable that deceased also received some pellet shots but the prosecution version is silent about any shot being fired from the guns carried by the respondent.
According to the eye-witnesses the shot fired by Nazar respondent from his rifle hit the deceased on the flank but injury No. 3 in the medical evidence, a wound of entry, vas found by the doctor or: the back of chest and no wound of entry was noticed on the flank of the deceased as alleged by them. In the circumstances the medical evidence does not support the ocular testimony of interested witnesses. The conclusion- drawn by the trial Court cannot be said to be perverse. I agree with the finding of the trial Court that both C the eye-witnesses were not present at the spot at the time of occurrence and did not witness it.
15. On the evidence on record prosecution had failed to prove its case beyond reasonable doubt and the trial Court was justified in giving the respondents benefit of doubt.
For the aforesaid reasons the revision is dismissed.