1. SALAHUDDIN AHMED, J.-The petitioner is the widow of deceased Muhammad Din who was alleged to have been murdered by respondent Malik Bashir.
2. Originally both the brothers, Malik Bashir and Malik Nazeer, were tried by the Sessions Judge for the murder and while the latter was acquitted the former was convicted and sentenced to death. On appeal before the High Court respondent Malik Bashir was also acquitted.
3. The occurrence took place on the 21st December 1969 at about 1 o'clock in the early hours of the morning, and a First Information Report was lodged by the petitioner at 4 a.m. On the same day at the police station 5 miles off from the spot. She stated in her report, inter alia. That while she was sleeping in her house with her husband and children, the respondent called out her husband from outside and the latter went to the door followed by the petitioner and opened the door. All of a sudden the respon--dent fired at her husband hitting him on his chest. The deceased fell down and the respondent after having again shot and hit the former, escaped. On the alarm raised by the petitioner, P. Ws. Amiruddin and Nawab arrived at the spot, and heard about the occurrence from the petitioner. As regards the motive she stated that a few days back her husband had purchased some land from one Allah Dad instead of from the respondent for building a shop. The respondent got annoyed with the deceased over this preference and murdered her husband.
4. A Sub-Inspector of Police arrived at the deceased's house, and held preliminary inquiry in course of which he seized some blood--stained earth and a 200 watts bulb, and prepared a site plan. The respondent surrendered before the police on the 7th January 1970.
5. The medical evidence disclosed three main fire-arm entrance wounds of the following sizes:-
(1) -- in diameter over the left forearm;
(2) 1" in diameter over the left side of chest near the line of the 7th rib, and
(3) 1-- " in diameter on the left side of chest at the level of the 2nd and 3rd ribs.
6. There was also an exit wound over the front of the left forearm.
7. Seven pellets, two small fragments of pellets, one irregular piece of peetal (may be cover of some tyre of bullet), and few pieces of cardboard were recovered from the Injuries. According to the medical evidence three injuries were the result of one shot fired from a rifle, and one injury, Le., the third entrance wound was the result of another shot fired from a shot-gun. No marks of charring, burning or powder or tattooing were found either on the clothes or the wounds of the deceased. As regards the third wound of entrance the opinion was expressed that the shot was fired not from close range but from some distance, beyond 4-5 feet.
8. The prosecution relied on the evidence of three witnesses in support of its cast-, namely, P. W. Mst.
9. Matlub Jan, widow of the deceased, P. W. 6 Zamiruddin and P. W. 7 wlakhan, the two neighbours.
10. Among these P. W. Mst. Matlub Jan alone claimed to be an eye-witness. The other two said they heard of the occurrence and the name of the assailants from P. W. Matlub Jan. One of them, viz. P.
11. W. Makhan, however, claimed that he saw three persons running away. And identified two of them as Malik Bashir and Malik Nazir who were both armed with fire-arms.
12. Both the accused denied the charge against them and said that they were falsely implicated at the instance of their enemy P. W.Makhan.
13. The learned Judges of the High Court gave the benefit of doubt to the appellant and acquitted him.
14. The High Court rejected the evidence of both P. W. Makhan and Zamiruddin, the former ors the ground that his house was 170 paces from the spot and the site plan did not show that the accused while escaping had to pass by his house and that it was doubtful that the witness could identify the persons who were escaping. It also appeared to the learned Judges curious that while the witness saw three persons he could identify only the two brothers viz. Malik Bashir and Malik Nazeer.
15. Furthermore, it was admitted by this witness that he had quarrelled with respondent Malik Bashlr over the irrigation of his field. As regards P. W. Zamiruddin, the learned Judges found that his evidence could only be treated as corroboration of the evidence of P. W. Mst. Matlub Jan. This left the Court with the evidence of Mst. Matlub Jan only. The learned Judges of the High Court found that her evidence was inconsistent with the medical evidence both in regard to the number of assailants involved in the case and the nature of the injuries found on the deceased. With reference to the site plan the learned Judges observed that if the witness was at point No. 2, it was not possible for her to see the culprit who fired from point No. 3. It was also observed that the respondent, too, had no motive for killing the deceased. The High Court, therefore, did not think it advisable to rely on her evidence.
16. It appears that the consistent evidence of P. W. Mst. Matlub Jan has been that there was only one culprit who had shot at her deceased husband. The medical evidence discloses that out of the four fire-arm injuries found upon the deceased three had been caused by a bullet fire arid the remaining one was caused by a shot gun (.12 bore). The medical evidence does not show that there was any mark of charring, blackening or tattooing either on the clothes or wounds of the deceased and that the injury caused by the shot-gun was from a distance beyond 4-5 feet. It is, thus, likely that at least two assailants were involved in the occurrence and they had fired from a distance of more than 4-5 feet, and, if P. W. Matlub Jan had seen the occurrence she could not have failed to notice the other assailant altogether. P. W. Matlub Jan's evidence is that as soon as the deceased opened the door, the respondent who was standing in front thereof at once pulled out a firearm from under his chadar and fired at the deceased hitting him in the chest. She also stated that the second fire was also fired by the respondent who was standing in front of the door of the house. If this evidence is true, it was curious that no charring, blackening or tattooing marks were found by the doctor who held the autopsy. It appears from the evidence that it was P. W. 7 Makhan who for the first time claimed to have seen both Malik Bashir and Malik Nazeer, the two brothers. It is not unlikely that P. W. Makhan, who had some grudge with Malik Bashir on account of a previous quarrel, falsely implicated Malik Bashir.
17. We, accordingly, think that the High Court's refusal to rely on the evidence of P. W. Matlub Jan is based on reasonable grounds. Her's being the only ocular evidence in the case and she being an interested witness her evidence could not be accepted without any independent corroboration which appears to be lacking in the present case.
18. We, accordingly, see no reason to interfere with the Impugned order of the High Court. The petition is dismissed.