' MAZHARUL HAQ, J.- Muhammad Alam (40), Muhammad (60), Sadiq (29) and Bashir (since dead) were tried for the murder of their co-villager Ahmad Khan. They were charged for the offence under section 449/302, P.P.C. Read with section 34, P.P.C. Bashir accused died during the trial. On 22-9- 1976 Sessions Judge, Gujrat acquitted the accused. State has come up in appeal. Abdul Qadeer complainant and informant also filed a revision.
2. Briefly the facts of the case are that Sadiq accused suspected Abdul Qadeer son of Ahmad Khan deceased of illicit intimacy with his sister Mst. Irshad. To avenge the insult, the respondent injured Ahmad Khan and they were prosecuted for the offence under section 307, P.P.C. Yet another motive against the accused was alleged which arose out of a land dispute between one Inayat and Bashir accused (since dead). Ahmad Khan deceased was said to have sided with Inayat and had given evidence in the civil suit against Bashir. The accused were said to be cousins inter se but Muhammad Alam accused had denied relationship with others.
3. On the night between 3/4-2-1972 Ahmad Khan and his son Abdul Qadeer P.W. Were sleeping inside the cattleshed. At about 1.30 a.m. The respondents pulled down the door shutters of the cattleshed and forced their entry. Alam and Bashir were armed with guns, Muhammad and Sadiq had Sotas with them. Sadiq raised a Lalkara that Ahmad Khan deceased should be finished, upon which Muhammad Alam fired at Ahmad Khan hitting him in abdomen. Bashir fired the second shot hitting him in the chest. Ahmad Khan fell down. Abdul Qadeer who had hidden himself near the cattleshed ran away. Sadiq chased him. Thereafter two more shots were fired at the deceased.
Abdul Qadeer went towards his house situated about 6/7 Karams from the cattleshed. He saw his mother and Asghar P.W. His brother, coming that way. P.Ws. Nawab and Ijaz also came over and they all saw the accused coming out of the cattleshed and going towards their Dera. Ahmad Khan died. In the morning at about 9 a.m. Abdul Qadeer reported the matter to P.W. Abdul Ghafoor, A.S.I.
At Police Station Jilalpur Jattan. After registering the case, the A.S.I. Went to the spot, he prepared the necessary documents and took into possession incriminating articles i.e, P.6 shutters of the door, 4 spent cartridges P.5/1-4. He sent the dead body of Ahmad Khan deceased for post-mortem examination.
4. Dr. Abdul Razzaq, Medical Officer, Aziz Bhatti Shaheed Hospital, held the autopsy on 5-2-1972 and found the following injuries on the dead body of Ahmad Khan:-
(1) A fire-arm wound 3/4" x 1/2" on the lateral aspect of right knee. There was fracture of patella and upper end of tibia and lower end of femur. In the medial aspect of knee, small-size crushed pieces of the pellets and round cardboard pieces were found.
(2) Bruise 3/4" x 1/2" on the front of left thigh 6" above the knee.
(3) A fire-arm wound 1-1/2" x 1-1/2" on the front of left side. The edges of the wound were black and inverted. The wound was passing into the abdominal cavity. There was tatooing around the wound.
There was rupture of spleen, diaphragm and fracture of small intestine. Last thoraci, ribs were fractured. Cardboard pieces and pellets were found into the wound. The wound was oval in shape.
(4) A fire-arm wound 1" x 1" situated in the middle of abdominal line 5" above the umbilicus and was 2" medial to the injury No,
3. The edges of the wound were inverted and there was burning around the edges of the wound. The wound was passing into the abdominal cavity. There was rupture of stomach and a portion of liver. The wound was passing along the side of vertebral column and into the left side of the back of the chest. Two pellets of small size found in the left side of the chest, 4" below the scapula. There was exit wound 1/2" x 1/2" on the back of left side of the chest near the vertebral column, 7" below the scapula.
(5) Fire-arm wound 1-1/2" x 1" situated on the front of left side of the chest below the lateral side of clavical. The wound was oval in shape. There was no burning. The edges of the wound were inverted and black. There was fracture of second, third, fourth left ribs. The wound was passing into the abdominal cavity. There was rupture of left upper lobe of the lung. Cardboard pieces and pellets found in the wound and 700 cc of the blood found in the left chest cavity.
(6) Multiple abrasions on the back of the left side of the chest. Swollen area of 7" x 3" and was 4" below the scapula.
' In the opinion of the doctor the deceased died of shock and heamorrage caused by injuries Nos. 3, 4 and 5, which were sufficient to cause death in ordinary course of nature. Injuries Nos. 2 and 6 were caused with blunt weapon and rest with fire-arms.
5. Accused denied guilt and ascribed the case to enmity. Muhammad Alam accused denied his relationship with the other accused. Bashir (since dead) was Muhammad's brother and Sadiq accused is their cousin. Sadiq accused said at the trial that P.W. Qadeer had no connection with his sister. According to him, cross-cases under section 307, P.P.C. Were filed arising out of a land dispute, but on compromise both parties were acquitted. Muhammad, brother of Bashir accused (since dead), said that three investigating officers found them innocent. Further, according to him, Ahmed Khan deceased wanted to obtain their land which was adjacent to his land, but they refused to give it to him. Explaining the case against him, Muhammad Alam, accused, stated that he was a witness against the deceased and his son in their litigation with the accused. Sadiq accused explained this litigation and said that his father, Bashir deceased, and Hayat, father of Bashir, purchased land adjacent to the land of Ahmad Khan, which the deceased wanted to purchase. Therefore, he put up one Inayat and some others and got a civil suit instituted through them, which failed and the accused won the case.
6. Trial Court came to conclusion that the prosecution evidence was interested. Since the occurrence took place at night, the identification of the accused was doubtful. It also did not rely on the evidence of motive, as it was not supported by any disinterested evidence. Trial Court further came to the conclusion that the F.I.R. In this case was belated, the accused were thus given the benefit of doubt and acquitted.
7. We have heard the learned counsel for the State and the complainant. They have criticized the findings of the trial Court mainly on the ground that the eye-witness account was given by Abdul Qadeer son of the deceased, who was also sleeping in the cattleshed when the occurrence took place. Thus, he was a natural witness. He saw the occurrence as a lantern was burning in the cattleshed. Moreover, Abdul Qadeer stated at the trial that he had illicit relations with Mst. Lrshad.
This admission was enough to prove the motive. Even otherwise, this motive was proved because the accused had admitted during the trial their previous criminal litigation with the deceased and his son, which according to the learned counsel arose out of the same motive, that is Qadeer's illicit intimacy with Mst. Irshad. It may be mentioned at this stage that there was no documentary evidence to prove the facts about the motive in the case under section 307, P.P.C. The accused have however, denied it and said that the cross-cases under section 307, P.P.C. Were the outcome of the land dispute which was decided in their favour. In view of these circumstances, we do not agree with the submission that the story of the motive was satisfactorily proved. The solitary statement of Qadeer was not enough to prove the two motives alleged. As to the second motive about the land dispute, Abdul Qadeer admitted that he did not say before the police as well as before the committing Court that Bashir accused (since dead) and his father had purchased land for Rs, 30,000 and Rs, 42,000, respectively, that the land was not mutated in favour of Bashir but some land from the Shamilat Deh was mutated in his name, therefore, the accused had a grudge against Ahmad Khan. Further, under cross-examination, this witness admitted that his father got a suit filed through one Ghayas against Bashir deceased because he was not delivering the possession of land to him. Abdul Qadeer, however, did not know the fate of that suit. He also did not know in which Court it was pending, nor he enquired from Ghayas about the result of this litigation.
This lack of interest on the part of Abdul Qadeer showed the weakness of the second motive also. It may also be added here that had the accused a grievance against Qadeer for his alleged intimacy with Mst. Irshad, then he would have been the main target and not his father. As to the occurrence, Abdul Qadeer said that he hid himself, but this did not improve the situation, because according to him, soon after their entry into the cattleshed, the two accused fired at his father. He hid himself and tried to slip away. If there was light in the cattleshed then it would have been most improbable for Abdul Qadeer to hide himself. We are in doubt whether there was any light in the cattleshed, because the investigating officer did not take into possession any lantern. Abdul Qadeer is the solitary eye-witness in this case. His presence in the cattleshed under the circumstances is highly doubtful.
8. We now take up the evidence of the remaining four witnesses.According to the narration in the F.I.R. P.W.8 Nawaz and P.W.12 Ejaz had seen the occurrence, but the two witnesses stated at the trial that they did not see the actual killing. They only saw the accused coming out of the cattleshed with their weapons, whom they identified in moonlight. But calculating the distance as given in the site plan from which the witnesses claimed to have seen the occurrence, the identification of the accused was doubtful. It was even otherwise highly improbable for these two witnesses to have gone towards the place of occurrence, knowing that the accused were armed with fire-arms. We find that both P.Ws. Nawab and Ejaz were admittedly inimical towards the accused. Their evidence on this score requires corroboration from an independent source, which is not forthcoming in this case. The name of P.W.10 Mst. Fatima is not mentioned in the inquest report. However, according to her, she was preparing tea for her son at the time of the occurrence and the door of her house was open, but in her police statement, she had not stated so. There she had said that she had gone to sleep and got up on the hue and cry of her son. Before the committing Magistrate, she had also stated that the accused had gone five or six Karams away from them and that their backs were towards them. This would also make the identification of the accused doubtful. P.W.9 Asghar is deceased's sister's son. His presence in village Hayat Garh was also doubtful. Under cross- examination, he admitted that he formerly used to reside in village Bhagowal. P.W. Mst. Fatima admitted under cross-examination that P.W. Asghar's mother was residing alone in village Bhagowal. This seems rather doubtful that Asghar would leave behind his mother in village Bhagowal to live alone. The investigating officer admitted that the address in the calendar of witnesses of Asghar was given as Bhagowal. He is also admittedly inimical towards the accused, because he appeared as a witness in the hurt case against the accused. As such, he is also an interested witness. There is also a delay in making the F.I.R. In this case. The police 'station was at a distance of 3 miles and the incident was reported in the morning at 9.30. There being no reliable corroborative evidence of the interested witnesses in this case, we do not consider it fit for interfering with the order of acquittal. This appeal is dismissed in limine.