JAVID IQBAL, C J.--This is State appeal against acquittal of Muhammad Akram, respondent, of charge under section 302, P.P.C.
2. The background is that Muhammad Akram, respondent, at 10-00 p.m. On 20-6-1981 alongwith his father Muhammad Ismail was sitting at the shop of one Shahid lqbal in Mohallah Mianapura, Sialkot City, when they were attacked by Abdul Saeed and fourteen others, the motive being that Muhammad Ismail father of the respondent had appeared as a witness in a civil suit against Abdul Saeed, that one Allah Rakha was a supporter of the said Abdul Saeed and that Muhammad Yousuf deceased in the instant case was a maternal nephew of the said Allah Rakha. The prosecution version further is that in the course of this attack, Muhammad Akram respondent had received four simple injuries on his person out of which three had been received on the head caused with a blunt weapon and one was an incised wound. The prosecution version continues that on hearing alarm, Muhammad Yousuf deceased came out of his house alongwith Muhammad lqbal P.W.7, his brother-in-law, and Mst. Noor Fatima P.W.8, his cousin sister and while he was near the door of his house, Muhammad Akram respondent came running there and stabbed him in the abdomen with a Chhuri. Muhammad Yousuf deceased was rushed to the hospital. While he was still alive, his statement was recorded under section 161, Cr.P.C by Feroze Din A.S.I. P.W.9. On the death of the deceased after eleven days, this statement was treated as dying statement. The ocular account in the instant case is being furnished by Muhammad lqbal and Mst. Noor Fatima P.Ws. There is no recovery evidence in the instant case and the motive version appears to be too remote. The prosecution case against the respondent was based on the dying statement and the ocular account. In the dying statement, Muhammad Yousuf deceased had stated that he was present in his house when he heard alarm of fight and on hearing the alarm, he alongwith his brother-in-law Muhammad Iqbal and his cousin sister Mst. Noor Fatima P.Ws. Came out of the house. While he was still near the door of his house, Muhammad Akram respondent came running and gave a Chhuri blow at his abdomen. The learned trial Court has disbelieved the dying statement for the reason that the spot where the occurrence had taken place was at a distance of 350 feet from the door of the house of the deceased and that them door of the house of the deceased was picked up as the spot for place of occurrence, so that the eye-witnesses who are closely related to the deceased could be produced as natural witnesses of the occurrences because they were present in the house of the deceased. Any way, according to the facts of the case, the deceased was not stabbed near the door of his house but he had been stabbed at a distance of 350 feet from his house. The second reason by the learned trial Court is not believing the prosecution version is that the injuries on the person of Muhammad Akram respondent have not been explained at all. The next point on which the prosecution case has not been relied upon by learned trial Judge is that it was an occurrence which took place at 10-00 p.m. When there was sufficient darkness and there was no evidence on the record that there was any electric light on the spot, therefore, it was difficult to accept that Muhammad Akram respondent was identified by the deceased. In other words, the deceased was not in a position to identify his assailant if there was pitched darkness on the spot.
Then the learned trial Judge has also not relied upon the ocular testimony in the instant case because, firstly, it came forth from the witnesses who claimed themselves to be closely related to the deceased and who were definitely inimical to Muhammad Akram respondent and his faction, secondly, there was no reason for Mst. Noor Fatima and Muhammad lqbal P.Ws. To have accompanied Muhammad Yousuf deceased to the spot where the fight was going on.
Furthermore, Muhammad lqbal P.W. Was included as an accused person in the cross case. The learned trial Judge has found it unusual as to why they were present in the house of the deceased when they were living elsewhere. Thus, they were not natural witnesses of the occurrence but were considered as chance witnesses. On this ground, he arrived at the conclusion that the prosecution has not succeeded in establishing its case beyond any shadow of doubt and, therefore, proceeded to acquit Muhammad Akram respondent.
3. We have gone through the impugned judgment and the record with the assistance of the learned Assistant Advocate-General and we agree with the findings of the learned trial Judge. It is reasonably probable that when the assault was on and Muhammad Akram respondent as well as his father were the victims of the said assault, it was in the C course of the same that the deceased received a single stab injury and it could not be ascertained as to who could possibly be the assailant when the two groups were fighting. Since this is a position, we do not find any substance in this State appeal which is, accordingly, dismissed in limine.