' SARDAR MUHAMMAD, J.-Mumtaz Ahmad alias Taji (28) and Khalid Javed (40) were tried for the murder of Bashir Ahmad (deceased) by Malik Muhammad Ramzan, Additional Sessions Judge, Sialkot. They were charged for having committed the murder of Bashir Ahmad (deceased) accompanied by Arshad Hussain alias Shaday Shah and Chan Pir Shah (absconders) and Munawar Hussain deceased. The learned trial Judge by judgment dated 11-8-1981 acquitted them.
The State has challenged the acquittal of Mumtaz Ahmad alias Taji and Khalid Javed through this appeal.
2. The occurrence took place at 7.00 a. m. On 8-6-1980. F. I. R. (Exh. P. E.) was lodged by Muhammad Iqbal (P. W. 5) at Police Station Sambrial, District Sialkot on the same day, which was recorded by Fazal Elahi, A. S.-I. (P. W. 13):
3. Muhammad Iqbal P. W. 5's case before the Police was that on 8-6-1980 at 7.00 a. m. He alongwith his brother Bashir Ahmad (deceased) was awaiting some conveyance near the Railway level crossing Daska Road he had to go to Daska to appear before a Magistrate in a case under section 325, P. P. C. Which he bad got registered against Mumtaz Ahmad alias Taji (respondent). Munawar Hussain son of Saleh Muhammad, Chan Pir Shah and Shada. He stopped a wagon which was coming from Sambrial side. Irshad Hussain alias Shaday Shah (absconder) who was sitting in the wagon started abusing no sooner he saw them when both of them retaliated. Irshad Hussain armed with a Khanjar, Mumtaz alias Taji, Khalid Javed, Chan Pir Shah armed with dandas and Munawar Hussain son of Saleh Muhammad empty handed came out of the wagon on the lalkara raised by Munawar Hussain. Mumtaz Ahmad took Bashir Ahmad into clasp. Munawar Hussain caught both his arms from behind whereafter, on a joint lalkara raised by Mumtaz Ahmad alias Taji and Munawar Hussain, Irshad Hussain gave a Khanjar blow on the left side of chest of Bashir Ahmad (deceased) who fell down. Khalid Javed and Chan Pir Shah started dancing, saying that if anybody approaches, he will not be spared. He has further stated that when he went ahead to save his brother. Munawar Hussain and Mumtaz alias Taji launched attack on him but he escaped, whereafter he picked up a wooden piece from the nearby wooden toll and caused injuries to Munawar Hussain and Mumtaz Ahmad to defend himself and his brother. Munawar Hussain fell down while Irshad Hussain etc., ran away. According to him the occurrence was witnessed by Khadim Hussain P. W. 6 and Muhammad Ramzan P. W.
7. He removed Bashir Ahmad (deceased) to Civil Hospital but he died in the hospital before any medical aid could be given.
4. Fazal Elahi, A. S.-I. P. W. 13 after the registration of the case proceeded to the Civil Hospital.
Sambrial where he prepared the inquest report (Exh. P. L.) on the dead body of Bashir Ahmad (deceased) and despatched the same for post-mortem examination.
' The post-mortem was conducted by Dr. Rizwan Ali P. W. 3 on the same day at 3.15 p. m. He observed the following injury :- "incised wound over chest left side 5 cm from sternum and medially below nipple 5 cm x 2 cm. On dissection the fifth and sixth ribs were cut on the left. Pericardium of heart and right chamber of heart were cut. Central part of the chest cavity contained about 1 lb. Clotted blood. All the other organs were healthy."
' According to his opinion death was due to shock and haemorrhage of the above-noted injury. He also opined that time between the injury and death was instantaneous.
5. Mumtaz Ahmad respondent was arrested by Fazal Elahi A. S.-I. On the same day from Civil Hospital, Sialkot where he was admitted Mumtaz respondent is also alleged to have got recovered sota P. 4 on 18-6-1980, which was taken into possession, vide memo. Exh. P. A. The sota was not, blood-stained. Khalid Javed respondent was arrested by Gul Abbas S.-I. Nothing was recovered from him, although according to the prosecution case he was armed with a danda at the time of occurrence.
6. The prosecution evidence consists of the evidence of motive, ocular evidence, medical evidence and the evidence of recovery. The eyewitness account has been stated by Muhammad Iqbal P. W.
5, real brother of Bashir Ahmad deceased. Khadim Hussain P. W. 6 and Muhammad Ramzan P. W.
7. Muhammad Iqbal P. W. 5 has stated that he was present near the Railway level crossing Daska Road Sambrial alongwith his brother Bashir Ahmad deceased, and were waiting for some conveyance to go to. Daska where he had to appear in the Court of a Magistrate against Mumtaz Ahmad (respondent) etc. In a case under section 325, P. P. C. Registered at his instance. He has stated he stopped a wagon which was coming from Sambrial side. When the wagon stopped the respondents armed with dandas accompanied by Irshad Hussain (absconder) armed with a dagger, Chan Pir Shah (absconder) armed with a danda and Munawar Hussain (deceased) empty-handed emerged out of the wagon. Mumtaz Ahmad respondent took Bashir Ahmad deceased into Japha. Munawar Hussain (deceased) held him from his arms and shouted that Bashir be done to death. The same was repeated by Mumtaz Ahmad respondent and Munawar Hussain, whereafter Irshad Hussain (absconder) gave a dagger blow on the left side of chest of Bashir Ahmad deceased who fell injured on the ground. Khalid Javed respondent and Chan Pir Shah (absconder) started dancing. They threatened him when he intervened. Munawar Hussain (deceased) and Mumtaz Ahmad respondent attacked him but he escaped, whereafter he picked up a piece of wood from the nearby wooden toll and inflicted injuries on the person of Munawar Hussain (deceased) and Mumtaz respondent. According to him the occurrence was witnessed by Khalid and Razman P. Ws.
' He admitted in cross-examination that he was accused in a cross-murder case which was registered against him and his other companions after the death of Munawar Hussain. He has also admitted that some cases were pending between his party and the party of the respondents. He has also admitted in cross-examination that he knew Ramzan and Khalid P. Ws. Since 3-4 years and had been meeting them.
' Khadim Hussain P. W. 6 and Muhammad Ramzan P. W. 7 have stated that they were present near the Railway level crossing and were waiting for some conveyance to go to Daska and that Muhammad Iqbal complainant and Bashir were also present there and Iqbal had stopped a wagon in which 13-14 passengers were travelling. The rest of the story narrated by these two prosecution witnesses is corroboration of the account given by the complainant, which has been noted above. Khadim Hussain P. W. Has admitted in cross-examination that Muhammad Nawaz was co-accused of the complainant in the cross-murder case of Munawar Hussain (deceased). He has conceded that he was a contractor and has been receiving payments from said Muhammad Nawaz who was Chairman of the Town Committee, Sambrial. Muhammad Ramzan P. W. 7 has denied that he was a personal servant of Muhammad Nawaz, co-accused of the complainant in the cross case. He has, however, admitted that he was Peon of a Bank but has denied the knowledge that said Muhammad Nawaz was a Chairman of the Bank.
7. The evidence of recovery of sota at the instance of Mumtaz Ahmad respondent has not been believed by the learned Trial Court and we have no reason to differ with his finding. Even otherwise since the sota was not blood-stained, it can be of no help to the prosecution. The medical evidence has been noted above.
8. The respondents have denied the allegations in their statement under section 342 of the Code of Criminal Procedure. Mumtaz respondent in answer to question, 'do you want to say anything else', has stated as under :- "I am innocent. As a matter of fact on the 8th June, 1980 at about 7.00 a. m. I alongwith Munawar Hussain, Khalid Javed, Ashiq Hussain brother of Munawar Hussain deceased were subjected to aggression by the complainant party at the railway crossing Daska Road, Sambrial, as a result of which Munawar Hussain was murdered, and I was seriously wounded. Ashiq Hussain lodged F. I. R.
No, 79, dated 8-6-1980 at Police Station, Sambrial through his statement made at Civil Hospital, Sialkot. I made my detailed statement in that cross criminal case against Muhammad Iqbal complainant and others. I tender the certified copy of my statement Exh. D. C. Made in his Court which will show that we were the victims of the aggression. The certified copy of the F. I. R. No, 79 Exh. D. D. Which I placed before the Court for perusal. I also produce certified copy of report No, 3, dated 24-3-1980 Exh. D. E. So as to show the motive of the complainant to launch attack upon us on the fateful day.
' He produced in defence copy of the statement of Dr. Rizwan Ali who conducted autopsy on the dead body of Munawar Hussain (deceased) and had medically examine him. Khalid Javed respondent in answer to question, 'do you want to say anything else ? Has stated as under :- "I am innocent. Since I am an eye-witness in the cross-criminal case relating to the murder of Munawar Hussain against complainant side, therefore, I have been falsely roped in this case so as to deter me from giving evidence."
' He also produced in defence certified copies of the statement of Ashiq Hussain and Abdul Majid alias Boota in the cross-case.
' We have considered the contentions of the learned counsel for the parties in the light of prosecution evidence and the plea taken by the respondents. We find weight in the argument of the learned counsel for the respondents that the presence of Muhammad Iqbal P. W. 5 (complainant) at the spot seems to be doubtful for the reason that had he been on the spot, he would have been the main target of the accused party as according to his own case it was he who had got the case registered against the other party, and not his brother Bashir. His statement that he had inflicted injuries on the person of Munawar Hussain (deceased), as a result of which the later died, and had also injured Mumtaz Ahmad respondent would show that he had actively participated in the occurrence. Had that been the true position, he would definitely have received some injuries. To us it does not sound well that an unarmed person would have been able to have caused injuries to two persons after his brother had fallen having deen injured. He has given such an improbable account, particularly regarding the part played by him that we feel obliged to agree with the contention of the learned counsel for the respondents that he, in all probability was not present on the spot.
' The contention of the learned counsel for the State/complainant that had the complainant not been on the spot, the F.
1. R. Could not have been lodged within half an hour of the occurrence at his instance does not find much favour with us for the reason that the F. I. R. In this case is shown to have been recorded with such amount of haste that one feels doubtful if really it was recorded at the hour shown ? Khadim Hussain P. W. According to his own statement, is a chance witness. He has stated that he was temporarily residing in Sambrial. He has not given any cogent reason for his being present at the Railway level crossing, although he has stated that he wanted to go to Daska but nothing has been stated as to what business he had to do at Daska ? Similarly, Muhammad Ramzan P. W. 7, although was residing at a distance of half a mile from the place of occurrence, has not been able to establish his presence at the spot for any cogent reasons. He was also stated that he wanted to go to Daska. He has also not given the reasons of his proposed visit to Daska. Moreover, the part assigned to each of the respondents also needs examination to determine whether there was any effective participation by them in the occurrence.
11. The allegation against Khalid Javed respondent is that he was armed with a danda and when Bashir Ahmad fell down after having been injured, he started dancing. If respondent was really there and was armed with a danda, he would certainly have played some role by inflicting injuries or at least by attempting to inflict injuries on the person of the complainant or Bashir Ahmad (deceased) particularly when the complainant according to his own statement was unarmed and Bashir deceased had fallen on the ground after having been injured. Similarly, the allegation against Mumtaz respondent that although he was holding a sota, he instead of inflicting any injury, had taken the deceased Bashir Ahmad into japha and raised lalkara, does not appeal to us. For holding the deceased into japha he would have to throw away the danda, which he otherwise could have used. This sort of behaviour cannot be expected to a person who according to prosecution was armed and had come out of the wagon to attack the complainant, he would not have been unmindful of the fact that if he throws the danda the same can be picked up by the complainant and can b used by him or his associates. In this view of the matter we do no feel convinced that the prosecution has succeeded in proving the participation of the respondents in the occurrence beyond any reasonable shadow of doubt. The eye-witness account being shaky and not confidence inspiring stands isolated in view of the fact that the evidence of recovery of danda at the instance of Mumtaz Ahmad respondent has also disbelieved by the learned trial Court.
12. We are also conscious of the fact that this is appeal against acqittal and considerations for setting aside the acquittal have to b kept in view. We have gone through the judgment of the learned lower Court. The conclusions arrived at by the learned trial Court are supported by facts, and are well reasoned. No case for interference with the judgment of acquittal is made out. The appeal is accordingly dismissed.