ATAULLAH SAJJAD, J.-Said Muhammad appellant in this case was committed to the Court of Session alongwith his first cousin Rashid alias Shani, his father's brother Nur Muhammad, the father of aforesaid Rashid, and Bashir, who is also related to him, to stand trial for offences under sections 302/34, 307/34, 452/34, 429/34, and 380/34, P. P. C. By the time trial was held Rashid alias Shani had met his death during an encounter with the Police and only three accused, namely, Said Muhammad, Nur Muhammad and Bashir were tried. Ch. Shamas Din, Additional Sessions Judge, Lahore found Said Muhammad guilty under section 302/34. P. P. C. For causing the death of Mst.
Pahna and sentenced him to death. He also found him guilty on two counts under section 307/34, P. P. C. For making murderous assault on Mst. Sughran and Ashraf P. Ws. And sentenced him to transportation for life. These sentences of transportation for life were to run concurrently in case of non-confirmation of sentence of death passed on the appellant.
2. This order shall dispose of Criminal Appeal No. 833 of 1970 as well as Murder Reference No. 25 of 1971.
3. The parties are residents of village Keet in Police Station Kahna Kachha, District Lahore. The evidence discloses that they are closely related but the seeds of discord were sown when criminal litigation started between them. A case under section 436, P. P. C. Had been registered against Rashid alias Shani, the deceased accused and Said Muhammad, the appellant, and others at the instance of Abdul Rashid the first informant in this case, as the aforesaid two accused among others were said to have set fire to Jawi crop of Abdul Rashid valued about Rs. 6,000.00. There were also proceedings under section 107/151, Cr. P. C. Between the parties.
4. The occurrence took place in village Keet on 11th December 1967 at Dopehrwela. There was some dispute about a vacant site of land between Nur Muhammad and his son Rashid alias Shani accused on one side and Mst. Pahna deceased and Abdul Rashid, the firs informant, on the other.
Mst. Pahna at the time of occurrence had gone with a basket to collect manure from the disputed site. The accused, out of whom Rashid alias Shani and Said Muhammad were armed with rifles and others were empty---handed, objected to it. There was an exchange of abuse between the accused and Mst. Pahna deceased. Rashid alias Shani then fired two shots from his rifle at Mst.
Pahna, who fell dead at the spot. The occurrence was seen by Abdul Rashid, the first informant, Faqir Hussain (P. W. 6), Sultan (P. W. 9) and Kist. Sughran (P. W. 10). The latter protested against this cruel attack on a woman but Said appellant is said to have fired his rifle at her as a result of which she received a fire-arm injury on her neck. The first informant and Faqir Hussain P. W. Entered their kotha and bolted it from inside. The four accused then trespassed into the Haveli which is inhabited by about ten families belonging to the complainant party. Rashid alias Shani fired at Ashraf (P. W.
14) the first cousin of the first informant. In the way he also fired on a bullock belonging to Abdul Rashid. The accused then went into the house of the first informant and Bashir, the acquitted accused, took away his licensed gun, which had been concealed into a heap of Parari by his wife Mst. Saidan P. W. Hidayat (P. W. 20) was coming towards the village, when Bashir fired two shots as a result of which he was injured. ,
5. The F. I. R. Exh. P-J was lodged at Police Station Kahna Kachha by Abdul Rashid on the same day at 1 p.m. And was recorded by A. S. I. Sabir Hussain (P. W. 21). The distance between the place of occurrence and the, Police Station is seven miles. The Investigating Officer sent the dead body to mortuary and the injured P. Ws. For medical examination. He also collected blood-stained earth and an empty of -303 rifle from the spot. Said Muhammad appellant was arrested on 19th December 1967 and at his instance rifle P-7 was recovered from a guava garden belonging to one Ghaus vide Memo. P-G on 30th December 1967 along with two live cartridges. The empty recovered from the spot and the rise were sent to the Ballistic Expert but the result was in the negative.
6. The learned Sessions Judge held that the story that the accused had trespassed into the house of Abdul Rashid and had taken away his gun by which Bashir accused injured Hidayat P. W. Did not carry conviction. He therefore came to the conclusion that it could not be ascertained as to under what circumstances Hidayat P. W. Had been injured. He also observed that if Nur Muhammad and Bashir had a common intention with their other co-accused they would not come to the spot empty---handed. He, therefore, acquitted Nur Muhammad and Bashir. He; found that Rashid alias S6ani was equally guilty with the present appellant but he having gone beyond the reach of long arm of law could not be punished.
7. The fate of the case binges on the ocular testimony. It was argued before the learned trial Judge that the witnesses of the occurrence were closely related to Mst. Pahna and therefore their testimony could be accepted; only with a grain of salt. He however rejected this argument and believed the ocular testimony in its entirety. He did not, advert to the fact that there was pre- existing enmity between the accused and Abdul Rashid complainant, and thus, failed to analyse the eye-witness account in the light of this background of enmity.
8. Before us Mr. Barkat A.I Saleemi mainly stressed the existence of enmity between the parties and said that there being no corroboration of the fact that Said Muhammad was actually armed with a rifle and had fired at Mst. Sughra, the conviction could not be sustained. Upon this aspect of the case he further submitted that a material part of the pro--secution story regarding the theft of the gun belonging to Abdul Rashid and the circumstances under which Hidayat P. W. Was injured having been disbelieved by the trial Court it was all the more necessary that we should seek corroboration of inimical testimony before upholding the conviction. He also said that in any case Said Muhammad had played a lesser part and, therefore, the sentence of death was uncalled for in the circumstances of the case.
9. The plea of the accused was that there were two parties in the village; one was led by Rashid, the first informant, and the other by Rashid alias Shani accused. It was alleged that there was a fight between these parties and during this fight there was exchange of fire as a result of which Mst.
Pahna met her death and other P. Ws. Were injured.
10. We are mainly concerned with the question whether or not Said Muhammad appellant was one of the companions of Rashid alias Shani and whether he caused the fire-arm Injury to Mst.
Sughran. This part of the story is deposed to by Faqir Hussain P. W. 6, the son of Mst. Pahna deceased, Sultan P. W. 9 and Mst. Sughran P. W.
10. It may be mentioned that Abdul Rashid, the first informant in this case, met a violent death allegedly at the hands of Rashid alias Shani accused in this case and his evidence is therefore, not available to the prosecution. Faqir Hussain P. W. 6 said that Mst. Sughran was shot at by Said appellant and he and Rashid, the first informant, took shelter in a room and bolted it from inside. The other witnesses, namely, Amanat A.I P. W. 7, Saidan Bibi P.
W. 8 Muhammad Ashraf P. W. 14 Muhammad Hayat P. W. 15, Muhammad Amin P. W. 19 and Hidayat P. W. 20 deposed to the factum of trespass by the accused in the house of Abdul Rashid complainant, the killing of the bullock by Shani, the theft of the gun of Abdul Rashid from his house and the injuries caused by Bashir accused to Hidayat P. W. By that gun. Abdul Rashid, the first informant, was the son of the brother of Mst. Pahna deceased. Amanat A.I P. W. 7 is a sister's son of Mst. Pahna, Mst. Saidan P. W. 8 is the widow of Abdul Rashid deceased, Muhammad Ashraf P. W. 1 is a first cousin of Abdul Rashid. The brother of Muhammad Hayat P. W. 15 is married to a sister of Mst.
Pahna deceased. His father was a nephew of the father of Mat. Pahna deceased. He is also a nephew of Muhammad Amin P. W. 19, who was a cousin of Mst. Pahna deceased. Mst. Sughran is related to both the parties. Abdul Wahab is the uncle of the father of Mst. Sughran. She is also a niece of Mst. Pahna deceased. On the other hand her first cousin Mst. Amiran is married to one Alaf Din, who is a nephew of Barkat, the father of Bashir accused Sarwar. Sultan is the only person who is not related to the deceased. He stated at the trial that he, had come to treat the buffalo of Mst.
Sughran and was at the relevant time in the house of Lal P. W. a brother of Mst. Sughran, when he Lal and Mst. Sughran were attracted to the spot after hearing the shots being fired. He also stated that when he, Lal and Mst. Sughran were retreating from the place where Mst. Pahna was fired at, Mst. Sughran was shot at from behind. We find that it will not be safe to rely upon his testimony. He had given his residence as village Gulvehra before the police but claimed that for the time being he was residing in village Keet. Mst. Sughran also supported him in this respect and said that at the time of the occurrence she had called him for treatment of her buffalo. Sultan claimed this proficiency f n treating cattle but miserably failed to show that he was aware of any disease of the cattle or the treatment to be given to them. Muhammad Hayat P. W. 15, who is a witness of injury caused to Hidayat, said that Sultan had left the village a year before the occurrence. This clinches the matter and we think that it is not proved that Sultan was a resident of village Keet or was present in the Haveli of the first informant with Mst. Sughran at the time of occurrence.
Mst. Sughran did not support the prosecution case at the trial. She only named Rashid alias Shani as one of the accused and said that she was unable to identify others. She further said that she did not see, who fired the shot, which hit her. She was declared hostile and her statement before the committing Magistrate was transferred under Section 288, Cr. P. C. To the record of the Sessions Court. In her statement before the committing Magistrate also, she had not supported the prosecution story. Even there she was cross-examined as a hostile witness. She admitted during her cross-examination, before the committing Magistrate that Said appellant was possessed of a rifle but denied the suggestion that she received the injury by a shot fired by him.
11. Besides Faqir Hussain, Mst. Sughran and Sultan the other witnesses also claimed to have seen Said appellant armed with a rifle going along with his co-accused after Mst. Pahna was shot dead.
As pointed out earlier their word cannot carry conviction unless there is corroboration of their testimony. It is not possible definitely to hold that Mat. Sughran received her injury at the hands of Said Muhammad appellant as she was fired at when she had her back towards the accused. As pointed out earlier Muhammad Ashraf P. W. Is an injured witness so is Hidayat P.W. Hidayat is, however, the father-in-law of Faqir Hussain P. W. While Muhammad Ashraf P. W. 14 is the first cousin of Abdul Rashid, the first informant. Of course Hidayat P. W. Had injuries on his person but the story that he was injured by Bashir, the acquitted accused, by the gun, which was taken away by the culprits from the house of the first informant, has not been believed by the learned Sessions Judge.
Mst. Sughran did admit in the committing Court that Said was equipped with a rifle. She went back on this statement at the trial and it is difficult to hold without any corrobora--tive piece of evidence as to which part of her statement is correct.
12. The eye-witness account comes out of the mouth of hostil witnesses. Mst. Sughran, Muhammad Hayat P. Ws. Admitted that there were two parties in the village. One was led by Rashid altar Shani, the deceased accused, and the other by Abdul Rashid, the deceased complainant. Hayat also stated that Abdul Wahab and Hidayat P. W. Belonged to the party of the deceased. We have reasons to believe that on account of the previous enmity Abdul Rashid, the deceased complainant, had a motive to involve as many members of the family of Rashid alias Shani, the deceased accused, as could ix possible. The active part attributed to Said appellant in injuring Mst.
Sughran P. W. Has not been substantiated. There is no corroboration of the statement of the P. Ws.
That Said appellant was present with a rifle with his co-accused Rashid alias Shani at the time of the incident. It is not possible for us to sustain his conviction.
13. The result is that the appeal succeeds. We set aside the conviction of the appellant on all the counts and the sentences passed on him, and direct that he shall be released forthwith unless he is required to be detained in any other case. The sentence of death is not confirmed.