By this revision petition under section 439, Cr.P.C., the complainant. Abdul Ghani, calls in question the judgment of the learned Additional Session Judge, Sialkot, dated 26-1-1988 acquitting the respondents, Ilahi Bakhsh, Muhammad Iqbal, Muhammad Bashu, Abdul Qayyum, Abdul Ghaffar, Abdul Karim and Muhammad Babar Khan of the charges under sections 148, 302 read with section 149 of the P.P.C. 11
2. The accused persons, other than Ghaffar, are members of the same family. Ilahi Bakhsh and Muhammad Iqbal, respondents, are real brothers; Bashir Muhammad and Abdul Qayyum are sons of Ilahi Bakhsh; Muhammad Babar Khan is a sister's son of Ilahi Bakhsh and a sister of Ilahi Bakhsh is married to Abdul Karim.
3. The incident occurred at 8.30 a.m. On 14-4-1987 near the house of Ilahi Bakhsh accused near the metalled road in the area of village Mallagarpur. The accused persons belonged to that place while the deceased Zulfiqar A.I alias Taddy was a resident of Salehpur. The prosecution case at the trial mainly rested upon the eye-witness account of the incident furnished by the testimony of Abdul Ghani (P.W. 5) and Allah Ditta (P.W. 6); Abdul Ghani was father of the deceased and Allah Ditta was paternal-cousin of Abdul Ghani. Both were residents of Salehpur.
4. The prosecution case was that 10 or 12 days before the occurrence, the deceased and Bashir Muhammad accused had quarrelled while playing cricket and Bashir Muhammad accused had injured the deceased. Abdul Ghani P.W. Stated that he had gone to Ilahi Bakhsh and sought his pardon for the excess if any committed by the deceased. On the day of occurrence, Abdul Ghani P.W. And Zulfiqar A.I, deceased, boarded a wagon for Sialkot. When the wagon reached Mallagarpur near the house of Ilahi Bakhsh accused, some one signalled the wagon to stop and asked the deceased to come down. The deceased did so and so did Abdul Ghani P.W. In the meantime, the accused persons armed with guns emerged from the nearby houses and attacked the deceased and killed him. Allah Ditta P.W. Claimed that he was returning to Salehpur from Sialkot by another wagon; that the wagon had stopped at Mallagarpur and that he had also seen the occurrence taking place.
5. The accused persons, other than Bashir Muhammad, denied having anything to do with the death of Zulfiqar A.I. Bashir Muhammad stated that was present in his house when the deceased accompanied by another carrying fire-arms went there and started firing. The shots hit the front wall and door of the house. He, in self-defence, also fired with the licensed gun of his father and the deceased was hit. After being hit, the deceased told his companion that he should fire at Bashir Muhammad. He had, therefore, to fire again in self-defence and the deceased was again hit. He fell near the metalled road and died. His companion continued firing; he then sat in a wagon and went away. The gun of the deceased was picked up by Muhammad Latif Chowkidar who produced it before the Investigating Officer. He added that Abdul Ghani and Allah Ditta P.Ws. Were not present at the time of the occurrence.
6. The prosecution had cited Tanvir Hussain driver of the wagon in. Which the deceased had travelled and Muhammad Latif Chowkidar of village Mallagarpur but gave them up as having been won over. They were examined as Court witnesses as C.W. 1 and C.W.
2. They fully supported the defence version of the incident as given by Muhammad Bashir accused. Muhammad Latif Chowkidar was a natural witness to the incident; he belonged to that place and so was Tanvir Hussain driver because it was his wagon by which the deceased had travelled and which, according to the prosecution, was standing near the house of the accused Ilahi Bakhsh when the incident occurred. As against Abdul Ghani and Allah Ditta who were chance witnesses and were closely related to the deceased, Tanvir Hussain and Muhammad Latif were independent persons and were shown to have no reason to depose falsely in favour of the accused person. Their testimony received support from the rifle P. 5 which was produced Muhammad Latif C.W. Before the Investigating Officer which was taken possession by him vide memo Ex. C.W. 2/1. 1 do not, therefore, think tat aw interference with the finding of fact recorded by the learned Additional Session Judge, who had the advantage of seeing and hearing the witnesses, is warranted Rejected in limine.