KHIZAR HAYAT, J- The State has filed this appeal (Cr.A.No,736/79) against the judgment of Additional Sessions Judge, Vehari, dated 20-12-1978, challenging the acquittal of Zafar Ahmad and Murid Hashmi alias Murid Shah, respondents, from the charge under section 302/34 PPC on the ground that the ocular testimony of A/il. Imam Bibi and Zulfiqar PWs has been wrongly disbelieved by the trial Court. A Division Bench of this Court vide order, dated 3- 4-1982, admitted this appeal against Zafar Ahmad who allegedly shot dead Pir Bakhsh, deceased, but dismissed it against Murid Hashmi, respondent, who was said to be hornyhanded at the time of occurrence.
2. Pir Bakhsh, deceased, had a grown up daughter by the name of A/i/.Rani. Zafar Ahmad, accused/respondent, used to visit the Dhari of the deceased in order to contact illicit intimacy with her. Pir Bakhsh did not like it and stopped Zafar Ahmad from visiting his Dhari. This was resented by the respondent and in order to take revenge he went to the Dhari of the deceased in the morning of 18-7-1975 at about 5 a.m., and killed the deceased by firing two revolver shots at him. The occurrence was witnessed by Zulfiqar (PW 9), Khuda Bakhsh PW (not produced) and A/.Vt. Imam Bibi (PW 8), widow of the deceased, who were present at the Dhari. Zafar Ahmad, respondent, then decamped from the scene. However, while running away he dropped his one shoe in a nearby watercourse. Mst. Imam Bibi (PW 8) repaired to the police station Gaggo, 7 miles/ away from the spot, and lodged report Ex-PC at 7.30 a.m., same day with AS1 Bashir Ahmad (PW 10).
3. After recording the FIR, AS1 Bashir Ahmad (PW 10) went to the spot. He despatched the dead body of the deceased to th^ mortuary under police escort for postmortem examination. He removed blood-stained earth and lifted two empty cartridges P.I/1-2 lying on the spot and secured them under separate memos Exs-PF and PG respectively. He also picked up shoe P.2 from the watercourse vide memo Ex-PH. The empties were got deposited in the office of Forensic Science Laboratory on 26-7-1975 through FC Jan Muhammad (PW 1).
4. On 25-7-1979, the respondent was arrested by AS1 Bashir Ahmad (PW 10) from Sheikh Fazil Bus Stand and recovered a revolver P.5 with cartridges P.6/1-2 in its chamber from his 'dub' and seized it under memo Ex-PK in the presence of Dara (PW 7), a relative of the deceased. Zafar Ahmad, respondent, got recovered his other shoe P.8 which was seized under memo Ex-PM attested by Muhammad Sadiq (PW 5) and Dara (PW7). Empties P.I/1-2 recovered from the spot were found by the Fire-arms Expert as wedded with pistol 1.5 recovered from the respondent vide his report Ex-PR.
5. Dr. Muhammad Afzal Saleemi (PW 4) on 18-7-1975 at 4.30 p.m., performed post-mortem examination on dead body of the deceased and found his both lungs pierced through by a bullet found lodged near the 4th rib. The doctor sealed it in a phial P.4 and sent it to the Investigating Officer. Injury in the chest proved fatal. According to the doctor, since stomach of the deceased was full, therefore, he (deceased) had taken his last meals about 3 hours before his death.
6. Prosecution examined l2 witnesses in support of its case and mainly relied on ocular testimony and incriminating recoveries besides report of the Firearms Expert (Ex-PR). The accused denied the allegations. Zafar Ahmad, respondent, explained that Muhammad Sadiq Bhatti (PW 5) is inimical towards him and his family because his father Subcy Khan helped complainant party of the murder case of Shera Kumhar, wherein Muhammad Sadiq Bhatti had been challaned. He also stated that his father had purchased agricultural land for a sum of Rs. 1,75,(KK)/- from A/.v/.Shah Begum, a relation of Muhammad Sadiq Bhatti, and in a dispute over its possession Muhammad Sadiq Bhatti helped Mst. Shah Begum. According to him, Muhammad Sadiq Bhatti had misled the complainant party and got instant case registered against him due to aforesaid enmity. He further stated that the decased had been killed in the darkness of night unidentified assailants and that one Sufi Muhammad Ramzan was suspected of this murder and was arrested by the police but was let off later on. It may be mentioned that the defence has relied on two affidavits Ex-DA and Ex-DB said to have been sworn by A/rt. Imam Bibi (PW 8) widow of the deceased and Zulfiqar (PW 9) son of the deceased, wherein the deponents supported the defence plea of the respondent saying that they were misled by Muhammad Sadiq Bhatti (PW 5) in getting this murder case registered against, him. Zafar Ahmad, respondent, in his defence examined 3 DWs. Muhammad Hussain Munshi (DW 1) stated that he had written both the affidavits (EX-DA and Ex-DB) at the instance of the deponents in the presence of Riaz Hussain, Advocate. Riaz Hussain, Advocate, (DW 2) supported this version and stated that he had signed the affidavit and identified A/it. Imam Bibi PW before the Oath Commissioner Mr. Muhammad Aslam Chaudhry, Advocate (DW 3) who also made similar statement.
7. Learned trial Court on consideration of the material on record disbelieved the ocular testimony as being in conflict with the medical evidence and finding the defence version as reasonably probable, acquitted the accused respondents.
8. We have heard learned counsel for the State as well as for the respondent and also perused the record.
9. Muhammad Sadiq Bhatti (PW 5) has admitted enmity with Subey Khan, father of Zafar Ahmad respondent, saying that Subey Khan had purchased I8h acres of agricultural land from A/rf. Shah Begum, his niece, for Rs.1,75,000/- and that in a dispute over the possession of this land he had helped A/s/.Shah Begum against Subey Khan. He also admitted that he was challaned for the murder of Shera Kumhar and that Subey Khan might have helped the complainant parly against him.
10. As far the recoveries, we find that shoe P.2 recovered from near the spot and the other shoe P.S recovered at the instance of Zafar Ahmad, respondent, on 25-7-1975 said to be belonging to Zafar Ahmad, are of common patter as admitted by Dara (PW 7), therefore, this recovery hardly connects the respondent with the crime. Similarly, recovery of empties P.I/1-2 from the spot which have been found as wedded with revolver P.5 recovered from the respondent is also of no consequence for the reason that the empties P.I/1-2 were retained at the police Station till 25-7- 1975 and were sent to the office of Forensic Science Laboratory on 26-7-1975, i.e., a day after the recovery of revolver P.5 from the respondent. There is thus a possibility that after recovery of revolver the said empties were prepared from it and then these empties and the revolver were sent to Forensic Science Laboratory's office. Recovery of empties P.I/1-2 from the spot is doubtful for another reason also, i.e., that if a cartridge is fired from a revolver its empty will not be ejected automatically unless the revolver is reloaded. There is no evidence that assailant/respondent had reloaded the revolver at the time of occurrence, therefore, dropping of empty at the spot was out of question, hence their recovery is fake. Consequently, report Ex-PR of Firearms Expert is rendered almost worthless.
11. Regarding the ocular evidence we find that learned trial Court has rightly rejected it on the ground that a shot fired from a distance of 4/5 paces (as stated by the witnesses) cannot cause charring around the wounds found on the person of the deceased. According to Modi, blackenin or scorching would occur on a gunshot wound if the fire-arm is discharged from a distance of less than 4 feet. Furthermore, both eyewitnesses, namely, A/s/.Imam Bibi and Zulfiqar (PW 8/PW9) arc proved to have sworn affidavits (EX-DA/EX-DB) absolving the respondent as has been slated by DWs 1,2 and 3, two of whom are advocates who do cool have any special relations with the respondent or enmity with the complainant party, ln the circumstances, it was not considered safe to rely on the evidence of such witnesses who were changing their stand from lime to time.
Therefore, their testimony was rightly ignored by lire trial Court. There is no misreading of evidence and the learned trial Court has not violated any principle of appreciation of evidence either. l2. For what has gone above, the impugned order of acquittal calls for no interference whatsoever.
Resultantly this appeal being without any merit is hereby dismissed.