1. M. R. KHAN, J.-Khadim Hussain, Jaffar Hussain and Maddad Ali , who are respectively the respondents Nos. 2, 3 and 4, were tried by the Sessions Judge, Sahiwal for the murder of Muhammad Din alleged to have been committed by them on the 18th April 1968, before sunset.
2. They were also charged for theft for snatching away the gun of the deceased. The Sessions Judge acquitted Maddad Ali of the murder charge, but convicted him under section 379 of the Pakistan Penal Code for the theft of the gun and sentenced him to rigorous imprisonment for 3 months. The Sessions Judge convicted Khadim Hussain and Jaffar Hussain under section 302/34 of the Penal Code and sentenced them to death, but acquitted them of the charge under section 379. On appeal and reference, a Division Bench of the Lahore High Court acquitted both Khadim Hussain and Jafhar Hussain of the charge under section 302/34 and set them at liberty. A criminal revision was also filed against the acquittal Maddad Ali of the charge under section 302/34, but the revision was dismissed. The petitioner, who was the complainant in this case, has now come tip with this petition for special leave to appeal against the judgment and order of the High Court.
3. The prosecution case was that on the 18th April 1968, Muhammad Din, deceased along with his brother Muhammad Hassan (P. W. 7) went to Mauza Alike Rohela with wheat for grinding the same at the flour mill there. When they were returning in the evening, Wali Muhammad joined them. As all the three were proceeding towards their village, Khadim Hussain, Jaffar Hussain and Maddad Ali emerged from a mosque and challenged them. Of them, Khadim Hussain and Jaffar Hussain were armed with pistol, each, but Maddad Ali was empty-handed. Khadim Hussain and Jaffar Hussain then fired one shot, each, hitting Muhammad Din in the chest and abdomen. Muhammad Yar (f. W.
4. 6) who was then in his nearby wheat-field, also saw the occurrence. As the witnesses tried to apprehend the culprits, they fled away. While they were fleeing away, Maddad Ali snatched away the gun from the hands of Muhammad Din, deceased who had already fallen on the ground on receipt of the pistol shots. Muhammad Yar then proceeded to the police station at a distance of 3 miles and lodged the F. I. R. At 10 p.m.
5. The motive for the murder, according to the prosecution, was that Khadim Hussain and Maddad Ali, who are two brothers, had suspected that Muhammad Din, deceased had developed illicit relations with their sister Mst. Bashiran. At the trial, the respondents Nos. 2, 3 and 4 pleaded not guilty to the charges and alleged that they had been falsely implicated in the case out of enmity.
6. The prosecution examined two witnesses, namely,. Muhammad Yar (P. W. 6) and Muhammad Hassan, son of Ahmad Ali (P. W. 7) as eye-witnesses to the occurrence. Wali Muhammad, who was said to have witnessed the occurrence, was examined in the committing Court, but he died before the commencement of the trial. Accordingly, Wali Muhammad's statement in the committing Court was transferred to the Sessions file.
7. The prosecution case rested on the evidence of the said witnesses and the following further materials
(i) The recovery of one pistol from Khadim Hussain and another pistol from Jaffar Hussain and two empties.
(ii) Recovery of the deceased's gun from Maddad Ali.
(iii) The opinion of the fire-arms expert that one empty was fired from the pistol produced by Khadim Hussain and the other empty was fired from the pistol produced by Jaffar Hussain.
(iv) The extra-judicial confession of Khadim Hussain, Jaffar Hussain and Maddad Ali, said to have been made before Muhammad Hassan, son of Nur Muhammad (P. W. 8).
8. On his own appreciation of the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the respondents Nos. 2, 3 and 4, as stated hereinbefore. The learned Judges of the High Court, however, found that the eye-witnesses were not only related to the deceased but were also inimical towards the accused-respondents. Accordingly, they considered it unsafe to maintain the conviction and sentences of the accused-respondents, without satisfactory corroboration. As regards the recoveries of the two pistols and the two empties, the learned Judges could not rely on the evidence of the recovery witnesses for which they appeared to have given good reasons. Hence; the opinion of the arms expert was considered to be of no consequence. The extra-judicial confession said to have been made before P. W. 8 Muhammad Hassan failed to carry any weight with the learned Judges. The alleged eye-witnesses, in the facts of this case, were found to be mere chance witnesses. Moreover, their evidence was found to be discrepant in certain material particulars. As regards the injuries, it was found that the medical evidence did not exactly tally with the evidence of the alleged eye-witnesses. According to their evidence, the two shots fired by Khadim Hussain and Jaffar Hussain hit the deceased's chest and abdomen. But, according to the medical evidence, there was another fire-arm injury on his back.
9. The learned counsel for the petitioner tries to explain that the back injury was the exit wound of the injuries on the front. The doctor could not give any definite opinion about it, but his evidence, read as a whole, indicates that the back injury, in his opinion, was a separate fire-arm injury fired from the back side of the deceased. This injury about which there was no satisfactory explanation went very much against the truth of the prosecution case.
10. Lastly, the motive alleged by the prosecution was found by the learned Judges to be untrue. Mst.
11. Bashiran is an old widow. Her daughter is aged 18 years and her son is almost equally aged and cultivates his father's land. An old widow like Mst. Bashiran, in the opinion of the learned Judges, was not expected to carry on illicit relations with Muhammad Din, deceased.
12. It appears that the view taken by the learned Judges on each piece of evidence was based on reasons. Accordingly, it cannot be said that their order acquitting the respondents suffers from any defect or legal infirmity or is against any settled principles.
13. The petition has no merit and is accordingly dismissed.