' This revision petition has been filed against the order of Ch. Muhammad Aslam, Sessions Judge Sahiwal, dated 20-4-1982 whereby Bahar Shah and Amin Shah, respondents, were acquitted from the charge of murdering Khan, deceased, on 11-1-1978 at 10 a.m. In the area of Chak No, 101/D, Police Station Malka Hans, District Sahiwal.
2. The prosecution case in brief is that Khan, deceased, had installed a tubewell in Killa No,5 of Square No, 12 within the area of Chak No,101/D, Tehsil Pakpattan. Bahar Shah and Amin Shah, respondents, also installed a tubewell in their lands at a distance of about three Acres from deceased's tubewell. In the evening preceding the day of occurrence, Khan deceased remained present at his tubewell for watering his land. The following morning at about 10 a.m. Ahmed Ali P.W.8 and Khan deceased were present at their tubewell when Bahar Shah and Amin Shah, respondents, came there. At that time Bahar Shah, respondent, was armed with pistol while Amin Shah, respondent, had a gun with him. Bahar Shah, respondent, asked Khan deceased to stop the operation of his tubewell because he wanted to irrigate his land through the watercourse being used by him. Khan deceased told him that he has yet to irrigate two Acres of his land and he would stop his tubewell only after irrigating that land. They felt annoyed and Amin Shah, respondent, exclaimed that they would divert the water of Khan deceased forcibly but the latter told them that he would not let them do so. Upon this, Amin Shah, respondent exhorted Bahar Shah to fire at Khan deceased as he was not allowing them to use the watercourse. Bahar Shah, respondent, fired a shot from his pistol but it missed the target. Bahar Shah exhorted Amin Shah to fire at Khan deceased and in response thereto he fired a shot with his gun which hit the deceased in his abdomen, as a result of which he fell down. Ahmad Ali P.W.8 raised alarm. Hamad P.W.9 and Fazil and Neka P.Ws. (both given up) were attracted to the spot. The deceased was removed to the hospital in an injured state, where he expired the same day. Leaving the dead body in the hospital Ahmad Ali P.W.8 went to Police Station Malka Hans and lodged the F.I.R. Exh.P.D. Inam Ullah Khan S.H.O. (who remained untraced during the trial, and was therefore, not examined, after recording the F.I.R., went to the spot. He prepard the inquest report Exh.P.E. And sent the dead body to the mortuary. He collected blood-stained earth from the place of occurrence and secured the same vide memo. Exh.P.F. He also picked up an empty cartridge from the spot and secured it vide memo.
Exh.P.H. The respondents were arrested on 15-1-1978. The same day, Bahar Shah produced a licensed pistol before him which was secured through memo. Exh.P.J. Whereas Amin Shah produced a licensed gun of one Saleh Shah of Chak No, 36/E.B, Tehsil Pakpattan. The gun and the licence were secured under memo. Exh.P.K. The licence of the pistol produced by Bahar Shah was seized through memo. Exh.P.L. These recoveries were witnessed by Fazal and Neka P.Ws. The aforementioned two fire-arms and the empty recovered from the place of occurrence were sent to the Fire-arms Expert is Exh.P.M. That of Chemical Examiner's report is Exh.P.N while Serologist's report is Exh.P.C. After completing the usual investigation the challan was put in Court against both the respondents.
3. The post-mortem examination carried out by Dr. Muhammad Siddique Bahatti P.W. 5 on the dead body of Khan deceasd, revealed multiple fire-arm wound in an area of 4" x 3" deep going on the front left side of abdomen, 11/2" outer to umblicus. A part of small intestine and omentum was protruding out of the wound. The margins of the wounds were inverted. Three pieces of wads and seventeen small irregular metallic pieces were removed from the abdomen and sides of vertebrae.
In the opinion of the doctor, the death was caused due to severe haemorrhage and shock produced by the fire-arm injury and was sufficient to cause death in the ordinary course of nature.
The probable time between injury and death was two hours and between death and post-mortem was twenty-two hours.
4. At the trial, prosecution produced as many as ten witnesses including Ahmad All P.W.8 and Hamad P.W.9 as the eye-witnesses of the occurrence. It may be stated that the other two eye- witnesses, namely, Fazil and Neka who were also the witnesses of the recovery of fire-arms, were given up as having been won over. Inam Ullah Khan, Sub-Inspector, who investigated the case, had retired from service and could not be traced out, therefore, the documents prepared by him were got proved through Umar Hayat A.S.I. P.W.1 who worked with him as Muharrir Constable during the days of occurrence.
5. From the above narration it would appear that the prosecution evidence consisted of ocular evident, incriminating evidence of recovery of fire-arms, the reports of the experts, the motive and the medical evidence.
6. The respondents when examined under section 342, Cr.P.C. Denied all the allegations against them. They also denied that the deceased had installed a tubewell in his land situate in Chak No, 101/D. According to them, the tubewell was installed by one Abdullah. They however admitted that their tubewell was near the tubewell of aforesaid Abdullah. Bahar Shah, respondent, stated that his licensed pistol was planted on him whereas Amin Shah, respondent, denied having produced any gun before the police. He further stated that his brother Saleh's gun was planted on him. However, no witness was examined by them in their defence.
7. The learned Sessions Judge having considered the material on record and the circumstances of the case, held that Ahmad All and Hamad, the eye-witnesses, had not seen the occurrence and there being no other reliable evidence the charge under section 302, P.P.C. Failed against the respondents. They were given benefit of doubt and were acquitted from the charge of murder.
Being aggrieved, Hamad P.W.9 allegedly applied to the District Magistrate Sahiwal, for moving the Government to file appeal against order of acquittal which is stated to be still pending.
8. This revision petition has been filed by aforesaid Hamad P.W. And one Sultan who claims to be the father-in-law of Khan deceased, praying that the impugned order of acquittal be set aside and retrial of the respondents be ordered.
9. I have heard the learned counsel for the petitioners at some length who has also read the impugned order before me. It is pertinent to note that Ahmad Ali P.W.8, the real brother of the deceased has neither moved the District Magistrate for filing appeal against acquittal of the respondents nor is he among the movers of the present petition who have challenged the impugned order. It appears that Ahmad All P.W.8 who is also the first informant in this case had during the pendency of the trial, submitted an application Exh.D.A. Before Magistrate for getting his statement recorded under section 164, Cr.P.C. In his statement Exh.D.D. Before the Magistrate on 2- 11-1981 he stated that he had not seen the occurrence of murder with his own eyes. He also stated before the Magistrate that about one or one and half hours A after the occurrence, he learnt about the murder through one Muhammad son of Karam Sandila and it was at his instance that he got the F.I.R. Recorded. He further stated before the Magistrate that he was satisfied in the Panchayat that Bahar Shah and Amin, respondents, were in fact innocent. The statement was also thumb- marked by him. The learned trial Judge, therefore, found that statement Exh.D.D. Was made by him before the Magistrate voluntarily and concluded that he was not present at the time of occurrence.
As for Hamad P.W.9, another eye-witness, it was found that his name did not appear in the F.I.R. And he was not that Hamad who was named in the F.I.R. Because their parentage did not tally. The recovery of both the fire-arms was not roved in Court because both the recovery witnesses, namely Fazil and Neka were given up as "won-over" and the Investigating Officer Inam Ullah Khan could not be produced as he -was not traceable and in these circumstances it was held that report of the Fire-arm's Examiner was of no avail to the prosecution because neither the recovery of crime empty nor that of the gun from Amin Shah, respondent was proved beyond reasonable doubt. As far as Bahar Shah, respondent, is concerned, it is admitted by prosecution that the shot fired by him did not hit the deceased and also no empty from the place of occurrence was recovered nor was it sent to the Fire-arms Expert.
10. In view of the above discussion it appears that the impugned order is quite in keeping with the evidence on record and does not suffer from any illegality or misreading of evidence. I may express, that if Inam Ullah Khan Sub-Inspector, had appeared it would have not improved the case of prosecution. In these circumstances, this revision petition has no merit and does not call for any interference. The result is that the revision petition fails and is dismissed being without merit.
Acquittal maintained.