Z. A. CHANNA, J.-This appeal, by the Provincial Government, calls in question the judgment delivered on 29-4-1972 by the learned Sessions Judge, Larkana, in Sessions Case No. 228 of 1971, whereby he acquitted respondents Fakir Mohammad and A.I Madad, who were tried on the charge of com--mitting murder of one Mazhar A.I, while respondent Fakir Mohammad was further charged under section 13(d) of the West Pakistan Arms Ordinance, 1965, for being armed with an unlicensed pistol. A.I Madad was murdered after the appeal was admitted to regular hearing and hence the appeal in respect of him was declared to have abated by an order passed by another Bench of this Court on 22-11-1973. As such, there remains only the appeal in respect of respondent Fakir Mohammad to be considered.
2. The incident, which is the subject-matter of this appeal, occurred in Larkana Town on 25-9-1968.
At that time respondent Fakir Mohammad was employed in the Police Department as a police constable. His place of duty was actually at Miro Khan Police Station but he had been deputed for one month's training at the Police Lines at Larkana. Both deceased Mazhar A.I and respondent Fakir Mohammad were residents of Nazar village which is at a distance of about one mile from Larkana Town. Between deceased Mazhar A.I and respondent Fakir Mohammad there were disputes over some land which was actually in the possession of the deceased but was being claimed by this respondent and on which he had actually put up a hut. The deceased had filed a civil suit against the respondent in respect of that survey number and for demolition of the hut. In return the respondent filed criminal prosecutions against Mazhar A.I for theft of the material of the hut. This was about a month prior to Mazhar A.I's murder. On account of the dispute over the land and the resulting litigation there was extreme toad blood between the deceased and respondent Fakir Mohammad, and the latter is said to have come, on one occasion, to Mazhar A.I's village and threatened the deceased and his son Ishaque that he would kill them. As the deceased and his son appre--hended danger from the respondent and felt themselves harassed by the attempts made by the respondent to implicate them in criminal cases, Mazhar A.I's son Ishaque, sent an application to the President of Pakistan, with copies to the Governor, Sind, I. G. Police and other authorities, complaining of the conduct of the respondent and requesting for protection and action against the respondent.
3. On 25-9-1968, at about 5 p.m., deceased Mahzar A.I came to Larkana in his tonga which was driven by his tonga driver, Mohammad Tagial, for making purchases and attending to some other work. He remained in Larkana till about 7-50 p. m. And then started for his village. When the tonga had reached near Royal Cinema, they met Tagial's son, Hakim A.I, who was a student in a local college and who asked for a lift in the tonga. He sat in the back seat of the tonga and the tonga proceeded for Nazar village. When the tonga had crossed the road junction near the Local Board Office, a gunshot was suddenly heard, on which Mazhar A.I raised a cry and fell down in the hodi of the tonga. Because of the gunshot the mare of the tonga shied and started to run away but Mohammad Tagial was able to control the mare by pulling hand on her reigns. Immediately after the shot had been fired. Mohammad Tagial turned his face in the direction towards which the shot had been fired and saw respondent Fakir Mohammad running away with a pistol in his hands. He was accompanied by two other persons who were armed with hatchets. One of these persons was identified by Mohammad Tagial as A.I Madad, who, as already stated was murdered before this appeal came up for hearing. The second person was not identified. Mohammad Tagial's son, Hakim A.I, being in the back seat of the tonga was in a better position to witness the whole incident.
He is said to have actually seen the respondent firing from a country-made pistol at the deceased from a close range and then running away alongwith A.I Madad and an unidentified culprit.
Immediately after the shooting one Mohammad Iddan Kodrani turned up and stated that he too had seen respondent Fakir Mohammad, A.I Madad alias Mundhoo, and one unknown person running away towards the southern direction and that while Fakir Muhammad had a pistol, the remaining two persons were armed with hatchets. Mohammad Tagial thereafter took the deceased. Hakim A.I and Iddan in his tonga straight to the Taluka Police Station, Larkana, which is four furlongs from the scene of offence, and there his F. I. R. Was recorded by S. H. O. Khamiso Khan at 8-15 p. m.
4. The S. H. O. Sent the dead body of deceased Mazhar A.I to the Larkana Hospital for post-mortem examination. He next inspected the tonga of the deceased from which he secured a blood-stained cushion. The S. H. O. Then recorded the statements of witnesses Hakim A.I and Iddan. Thereafter he proceeded to the scene of offence where he found S. P. Diam Shah and S. D. P. O. Present. The scene of offence was on a metal road immediately outside the Office of the District Council, Larkana.
There was an electric street light at a distance of 12 feet from the scene of offence and also electric lights in the outer wall of the Agricultural Office. This office is located on the opposite side of the road to the District Council. On the following day, at 6-30 a. m., the S. H. O. Arrested respondent Fakir Mohammad from outside the Police Headquarters. On the same day the S. H. O. Recorded the statements of Mohammad Ishaque, Wahid Bux and Habibullah. On 16-10-68, A.I Madad and Chuttal were arrested by Nausharo Feroze Police. On 11-10-1968, the S. H. O. Submitted an interim challan against respondent Fakir Mohammad, A.I Madad and Chuttal.
5. It appears that the son of the deceased, Mohammad Ishaque, was not satisfied with the investigations conducted by S. H. O. Khamiso Khan and accordingly made an application against him to the D. I. G. Police, who directed S. H. O. Illahi Bux, who was then posted at Ubauro Police Station, to take over the investigations. On 12-i0-1968, S. H. O. Illahi Bux recorded the further statement of complainant, visited the site and also recorded further statements of Hakim A.I and Iddan. Illahi Bux also interrogated respondent Fakir Mohammad, A.I Madad and Chuttal in the Jail.
On 21-10-1968, he arranged for an identification test of Chuttal through witnesses Iddan, Tagial and his son, Hakim A.I, in the presence of the Third Class Magistrate, Larkana. Ire that test none of the witnesses were able to identify Chuttal. In view of the failure of any witness to pick out Chuttal, the latter's name was deleted from the challan and he was not tried.
6. The inquest on the deceased was conducted by Dr. Rafiq, who was then Medical Officer at Civil Hospital, Larkana. He found the following external injuries on the body of the deceased:- "(1) A gunshot wound of entry ----- in diameter x chest cavity deep posteriorly over the lateral wall of chest.
(2) A gunshot wound of entry ----- in diameter x chest cavity deep over the back on the inner side of right scapula.
(3) A gunshot wound of entry ----- in diameter x chest cavity deep over right side of back below the scapular region.
(4) A gunshot wound of entry ----- in diameter into chest cavity deep below the left scapular region over the back,
(5) A gunshot wound of entry ----- x ----- over back of right upper arm.
(6) Charring of skin with laceration 1" x ----- below injury No. 5".
On internal examination, the medical officer found one wound of entry ----- in diameter in the right lung and a similar wound in the left lung. Left ventricle of the heart was punctured and there was a track of gun pellet over the posterior lateral surface of the liver. Two pellets were recovered from the cheat cavity. The medical officer has opined that the various injuries which he saw on the deceased were ante-mortem, that excepting external injuries 5 and 6 all the injuries were individually sufficient in the ordinary course of nature to cause death and that these injuries appeared to have been caused by the discharge from a fire-arm, which was apparently fired within a range of four feet.
7. The respondent, in his defence, stated that he has been falsely implicated on account of the dispute which deceased's son, Mohammad Ishaque, had with him. He has denied that he had fired at or killed the deceased or that he ever possessed a pistol or revolver. He also submitted alongwith his statement in the Sessions Court a written statement which was accompanied by copies of decisions of various Courts. One of these decisions is in respect of a case in which the respondent was tried alongwith other police officers for an offence under section 220, P. P. C. But was acquitted in the said case, and another decision is by the Resident Magistrate, Larkana, in respect of a proceeding under section 107, Cr. P. C. Which was taken by deceased Mazhar A.I against certain persons for failing to vacate his lands which he had acquired for the purposes of a cooperative society and instead had given him threats.
8. The case against respondent Fakir Mohammad rests solely on the ocular testimony of complainant Tagial, Hakim A.I and Iddan. The learned Sessions Judge was of the view that on account of the admitted enmity between the respondent and the deceased, and the fact that the complainant was a tonga driver of the deceased, P. W. Hakim A.I was the son of Tagial and Iddan was not only a co-villager of the deceased but at one time had also been a Chowkidar on a project of the deceased, these witnesses were interested witnesses and their testimony could only be relied upon if it was "corroborated by corroborative evidence sufficient in itself to warrant conviction against the accused," which evidence according to him was wanting, except evidence as to motive, which could also possibly serve as a handle to implicate the accused. The learned Sessions Judge further considered the evidence of complainant Tagial to be unreliable because at the trial the version that he put forward was that he had actually seen respondent Fakir Mohammad firing the fatal shot at the deceased. Accord--ing to the learned Sessions Judge, this version is "belied by his F. I. R. Which is very clear to the effect that he neither saw anybody firing from the pistol at Mazhar A.I nor he identified any of the accused at the time of the incident." In coming to the view that complainant Tagial had neither seen the fatal assault on the deceased nor had identified any of the culprits, the learned Sessions Judge not only took note of the fact that the witness must have been fully occupied in controlling the scared horse but also relied upon the testimony of S. P. Diam Shah, who was examined as a defence witness. The version of S. P. Diam Shah was that he was out on a stroll, after offering Maghrab prayers, when at a short distance from his bungalow he heard a fire-arm report and cries of murder, whereupon he rushed towards the District Council Office, from which direction the cries were coming, and on reaching the scene of offence he saw a tonga standing at the gate of the Agricultural Office. He has further deposed that he saw com--plainant Tagial standing in the back hodi of the tonga, pulling the reigns of the horse with force, and in the front hodl of the tongs deceased Mazhar A.I was lying on the left side, and that complainant Tagial informed him, on his interrogation, that while they were driving in the tonga Mazhar A.I was hit by a gunshot upon which the horse of the tonga had shied and bolted away and that he neither saw anybody firing a gust nor he bad identified anybody who had fired the gun.
9. The learned Sessions Judge was also of the view that P. Ws. Hakim A.I and Iddan were not only chance witnesses but further had not witnessed the incident. In coming to this conclusion, the learned Sessions Judge placed reliance on the testimony of S. P. Diam Shah, who has deposed that he had not seen either of these witnesses at the scene of offence, and also on the deposition of P.
W. Ghulam Rasool, a relation of the deceased, according to whom he had seen the dead body of Mazhar A.I Pt the Civil Hospital at about 8 or 8-30 p. m. But he had not seen any of the witnesses at the Hospital. The learned Sessions Judge was particularly impressed by the admission made by this witness in his cross-examination to the effect that he had gone to Seo Bazar, which is at a distance of about ----- mile from the scene of offence, and in that bazar he had met P. W. Hakim A.I at Kashmiri hotel, who was weeping and had informed him that Mazhar A.I had been murdered but be neither informed him that he had himself witnessed the incident nor had told him as to who had killed him. The learned Sessions Judge was of the view that if Hakim A.I had witnessed the incident he would not have failed to give this information to P. W. Ghulam Rassol, and if he had identified the culprits he would have also given him their names. The learned Sessions Judge has also commented upon the discrepancy between the F. I. R. And the testimony of the witnesses as to the relative position in the tonga occupied by the deceased and as to whether the com--plainant was sitting with him in the front seat or was sitting in the back seat and has considered that this discrepancy further tends to throw doubt upon the veracity of the witnesses and as to the presence of P. Ws. Iddan and Hakim A.I at the time of the incident.
10. We have heard at some length Mr. Imam A.I Qazi, who appears for the State, and Mr. Habibullah Samo, the learned counsel for the respondent, and have been taken by them through the evidence in the case. Mr. Imam A.I Qazi submitted that the view taken by the learned Sessions Judge that Iddan and Hakim A.I never saw the incident and appear to have come subsequently from Nazar village was unsustainable in view of the fact that thy F. I. R. Was lodged within 20 minutes of the incident and not only their names are given in the F. I. R. But further they had accompanied the complainant and the dead body to the police station, as stated in the F. I. R. He submitted that the learned Sessions Judge had misread and mis-appreciated the evidence of these witnesses. He further submitted that the learned Sessions Judge had failed to appreciate the fact that in the F. I.
R. Itself complainant Tagial bad stated that he had seen respondent Fakir Mohammad, immediately after the shot had been fired, running away from the scene of offence with a pistol in his hand. Mr. Habibullah Samo, on the other hand, contended that this was virtually an unwitnessed crime and that while complainant Tagial, according to the version given by him in the F. I. R., had not seen the fatal shot being fired at the deceased, the learned Sessions Judge rightly rejected the testimony of P. Ws. Iddan and Hakim A.I as they did not appear to have witnessed the incident and evidently came later.
11. The main point which falls for consideration in the instant case ',d is whether this was a witnessed or unwitnessed crime, and if it was witnessed, whether the assailant or assailants were identified and the testimony as to Identity is reliable and does not admit of doubt. In the F. I. R., which was lodged within 20 minutes of the incident and before there could have been any time for concocting a false story or adding any embellishments, it is clearly stated that though the complainant himself did not see the actual firing on the deceased, he had, on the shot being fired, seen the respondent running away with a pistol in his hand, and that further the respondent was accompanied by two other persons armed with hatchets, of whom one was identified by the complainant to be A.I Madad. The F. I. R. Further mentions that though on the shot the horse of the tonga had shied and tried to run away but the complainant had been able to control it and stopped the tonga by pulling hard on the reigns. It was urged by Mr. Habibullah that since the complainant himself had not seen the shot being fired, and immediately thereafter was busy in controlling the horse, there was no opportunity or possibility for him to have seen the assailant. We are unable to find any substance in this contention and are of the view that the complainant, on hearing the shot, must have looked towards the direction from which the shot was fired, and if there was anybody running away, he must have seen such a person, despite the fact that the horse took fright on the shot and tried to bolt away. The controlling of the horse by the complainant, in our opinion, must have been subsequent to the complainant turning his gaze, as is but natural in the circumstances, in the direction from where the shot was fired, and in any case the latter act could not have materially hindered him in controlling the horse. The medical evidence, to which we have already referred, shows that the shot was fired from very close quarters and certainly within a distance of four feet from the deceased. In the circumstances, complainant Tagial, who was sitting in the tonga, if he did turn his gaze in the direction from where the shot was fired, could not but have seen the assailant and the weapon carried by him. No doubt in his evidence in Court the complainant has tried to show that he saw the respondent and his companions even before the shot was fired and that he had actually seen respondent firing the shot at the deceased, but we consider that this part of his evidence is a subsequent improvement, quite unworthy of credit, and that the true version appears that is stated in the F. I. R. Namely that the complainant, on hearing the shot, had turned his gaze in the direction from which the shot was coming and had seen three persons running away, of whom he recognized respondent Fakir Mohammad who was armed with a pistol.
12, The evidence of the Tapedar shows that there was an electric pole with a light bulb at a distance of only 12 feet from the scene of offence and there were several other poles with bulbs at a distance of about 100 to 110 feet from the scene of offence. If all these bulbs were lit and in working order at the time of the incident, there was obviously enough light for identification, specially as the murderer had fired the fatal shot from a very close distance to the deceased. An attempt was, therefore, made to show that the bulb nearest to the scene of offence, i.e. The street bulb, which was at a distance of 12 feet from the place of the shooting, was fused. Complainant Tagial has deposed in his evidence that the street bulb at the scene of offence as well as the bulbs in the Agricultural Office were all burning and has denied that the street bulb was fused. He has also denied that he had stated to S. H. O. Illahi Bux that the street bulb was fused. Similarly. P. Ws.
Hakim A.I and Iddan have denied that they had stated to S. H. O. Illahi Bux that the street bulb was fused. They have been contradicted by S. H. O. Illahi Bux. According to him, Tagial, Iddan and Hakim A.I, in their further statements to him, had stated that the street bulb was fused and was not burning at the time of incident. We have not understood why it was necessary for S. H. O. Illahi Bux to make such a query from the witnesses and that too some days after the incident. If there had been any question whether the bulb was fused, he could have sought correct information from the Municipal Office or the Electric Department, Larkana. It seems to us that S. H. O. Illahi Bux, for certain reasons of his own, was anxious to create doubts in regard to the identity of the culprits. This may have been not only on account of the fact that a police man was involved in the crime, but further because P. W. Ishaque was tenerious enough to complain to the higher authorities not only against the investigation of S. H. O. Khamiso Khan but apparently against the whole Larkana Police and had asked for an Investigating Officer from another District. The evidence of S. H. O. Khamiso Khan is clear that when he went to the scene of offence he saw the street bulb burning and in order. Even S. P. Diam Shah, whose evidence we will examine in some detail later, has not stated that the street bulb was out of order or was not burning. If he had noticed that this lamp was not burning he would have said so. There was thus clearly adequate light for identification.
13. We are also of the view that the version in the F. I. R. That the complainant was sitting in the back seat of the tongs, with Hakim A.I appears to be correct and that the deceased was sitting alone in the front seat. A tonga driver would not ordinarily dare to sit on the same seat as or by the side of his master, nor even the tonga driver's son would do so, unless there was no other seat or the tonga otherwise was liable to lose balance. Since there was adequate place in the back seat to accommodate both Tagial and his son and there was no question of the tonga becoming unbalanced, we see no reason why the tonga driver would have sat in the front seat with his master. The learned Sessions Judge, however, appears to have been considerably influenced by the discrepancy between the F. I. R. According to which P. W. Hakim A.I was sitting with his father in the back seat, and the testimony given by the witnesses in Court that the complainant was sitting in the front seat alongwith the deceased, and has strongly relied upon it in support of his view that neither Hakim A.I nor Iddan had seen the incident or identified the culprits; and that further this twist in the prosecution case was a later innovation to fit in with the medical evidence. The learned Sessions Judge was of the opinion that the injury on the deceased was on the back side, which in turn suggested that the shot had been fired from the rear, and it was because of this that the witnesses were anxious to show that his back was visible and hence could be fired upon without difficulty. The learned Sessions Judge, however, appears to us to have mis-read and mis- appreciated the medical evidence which shows that the injuries on the deceased were all on the right side and laterally, indicating that the person who fired the fatal shot at the deceased did not do so from the back but did it from the right side, presumably just as the tonga of the deceased was passing by him. It was thus of no consequence whether the back of the deceased was open and vulnerable, for, as already indicated, the shot did not strike him in the back, but on the side. The witnesses may have been cajoled or made to say, due to error on account of lapse of memory, in their testimony that P. W. Hakim A.I was sitting in the front with the deceased at the time of the incident but from this discrepancy alone between their testimony and the F. I. R. Which is not material, it cannot be inferred or concluded that they have given false testimony in regard to the main facts of the incident or as to the identity of the murderer.
14. We are also not impressed with the argument that since P. W. Hakim A.I met P. W. Ghulam Rasool soon after the incident in Seo Bazar about J mile from the place of incident and merely informed him that Mazhar A.I had been murdered but neither gave him the names of the culprits nor even mentioned that he had witnessed the incident, therefore, there is reason to believe that he had not witnessed the incident or at least a doubt is created whether he had seen the incident. The mashirnama of the injuries on the deceased and the securing of the blood-stained cushion of the tonga, Exh. 9, shows that it was prepared on the day of the incident at 8-45 p. m. This was prepared at the police station. It was after the preparation of this mashirnama and the inquest report that the deceased was sent to the hospital for post-mortem examination, as deposed by S. H. O.
Khamiso Khan. It was, therefore, impossible for P. W. Ghulam Rasool to have seen the dead body of the deceased at the hospital at 8-00 or 8-30 p. m. It is obvious that he is mistaken as to the time when he saw the dead body at the hospital. Evidently he must have seen the dead body in the hospital some time after 9 p. m. The mere fact that Hakim A.I told him about the murder of Mazhar A.I, but neither informed him that he had witnessed the incident nor gave him the names of the culprits, does not lead to the inference that Hakim A.I had either not witnessed the incident or not identified the culprits, specially when the F. I. R. Had been lodged quite some time before Ghulam Rasool met Hakim A.I and even the statement of Hakim A.I had been recorded by the police in which he had given a full version of the incidence.
15. The learned Sessions Judge, in disbelieving the testimony of Hakim A.I and Iddan, has also strongly relied upon the testimony of S. P. Diam Shah who has given an altogether different account of how and when these witnesses came to the scene of offence. According to S. P. Diam Shah when he first came to the scene of offence, after hearing the gunshot, he saw only complainant Tagial with the deceased and did not find either P. W. Hakim A.I or Iddan. His further version is that after directing com--plainant Tagial to take the deceased to the hospital, as Tagial stated that Mazhar A.I was still alive, he went to his bungalow, which was at a distance of about 150 yards from the scene of offence, and informed S. H. O. Town Police Station about the incident and then he came back to the scene of offence when the constables present at the wardat produced before him two persons with cycles who had been stopped by them as they were insisting on passing by the scene of offence and claimed that they had come from Nazar village. S. P. Diam Shah had further stated that he made enquiries from the two persons, one of whom gave his name as Hakim A.I son of Tagial and the other gave out that he is a servant of deceased Mazhar A.I, and that Hakim A.I told bib that they had come on learning that his father Tagial and Mazhar A.I had been killed by gun-fire, but he informed them that Tagial was safe and Mazhar A.I had been injured and had been taken to the hospital and thereafter he allowed them to go away towards Larkana Town. We are of the opinion that the evidence given by the S. P. Is thoroughly unreliable and he has evidently been at pains to testify in favour of the respondent. As already indicated, the incident occurred at 7-55 p. m. And the F. I. R. Was recorded at Larkana Taluka P. S., four furlongs away, at 8- 15 p. m. Further the F.I.R. Specifically mentions that complainant Tagial had come to the police station alongwith the dead body of the deceased and accompanied by P. Ws. Hakim A.I and Iddan S. P. Diam Shah, who was at some distance from the scene of offence when the shot was fired, assuming that he did hear the shot and went immediately to the scene of offence, must have taken some time to reach the scene of offence and also must have spent a fear minutes in making enquiries from the complainant and giving him directions. If, thereafter, he went back to his bungalow, telephoned, and returned to the scene of offence, as stated by him, he must have taken 7 to 10 minutes in doing so. As such, he could not have come back to the scene of offence before 8- 15 p.m. In. By that time according to the F. I. R. And the testimony of S. H. O. Khamiso Khan, Iddan and Hakim A.I were already at the police station, four furlongs away from the scene of offence. They could not thus possibly have been at the scene of offence at that time. Furthermore, if they were with cycles, what happened to their cycles and how is it that they went to the police station in a tonga. Again, if S. P. Diam Shah had directed the complainant to go to the hospital, why is it that the complainant instead went to the police station and not to the hospital. We have also failed to understand and appreciate why the S. P. Rang up the S. H. O. Of the Town P. S., when the incident had occurred within the jurisdiction of the Taluka P. S. The most important circumstance, however, which tends to discredit the testimony of the S. P. Is that though according to him neither the complainant had sewn or identified the culprits nor P. A's. Iddan and Hakim A.I had witnessed the incident and in fact the latter two had come to the scene of offence much later, yet he did not care to inform these important circumst--ances to the Investigating Officer or even to the D. I. G. Police who had made enquiries from him about the matter. It seems to us that the S. P. Who incidentally was made to retire from service prematurely on account of another incident, has either tried to give obliging evidence in favour of a policeman or has taken umbrage at the deceased's son, Mohammad Ishaque, making a complaint against the Larkana Police and requesting for an Investigating Officer from another district. Be that as it may, we consider the conduct of S. P. Diam Shah most peculiar and are of the opinion that had the complainant informed him that he had not seen or identified the culprits or if he had found that Iddan and Hakim A.I were untruthful witnesses and were not present at the time of the incident, he would have certainly communicated this fact to the S. H. O. And instructed him not to challan the respondents, unless there was other tangible evidence against them. The S. P. Has had to admit that he gave no such instructions to the Investigating Officer nor did he think it proper to appraise the Investigating Officer of what he had been told or had learnt of the incident.
16. An attempt has been made to show that P. W. Iddan like the other witnesses is or at least was an employee of the deceased and, there fore, is an interested witness. The witness himself has denied that he was either a hart or a Chowkidar of Mazhar A.I. P. W. Ishaque, however, was confronted with the statement made by him before the Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, to whom this case, at one time, was referred to the effect that P. W. Iddan was formerly a Chowkidar of co-operative Society in his official capacity. Since the full record of his statement before the Tribunal was not available, it is not known to which society the witness was making a reference, but even if it be assume) that he was referring to the society which was founded by deceased, Mazhar A.I, this would not make P. W. Iddan an employee of Mazhar A.I. In any case, since P. W. Iddan was not an employee of Mazhar A.I at the time of the incident and moreover as Mazhar A.I, was dead, there was no interest left of P. W. Iddan or even of P. W. Hakim A.I in the deceased. As such, their interest in the deceased was not direct and was of a remote and distant kind, which we consider was not of a kind or of a strength sufficient enough for them to give false testimony in a capital case. The enmity and the dispute was between the deceased and respondent Fakir Mobammad and the witnesses, including the complainant, were no party to the same. The mere fact that complainant Tagial was an employee of the deceased and Hakim A.I was his son would not be strong enough a circumstance for these witnesses to falsely implicate a policeman, The bond that existed between the deceased and Tagial was broken on the death of the deceased and the interest of the complainant in the deceased was merely that of a former employer. Since Mohammad Ishaque the son of the deceased, was in Karachi at the time of incident and arrived on the following day, he was not in a position to influence their police statement or persuade them to falsely implicate respondent Fakir Mohammad and his companions.
17. On a careful analysis and examination of the evidence in the case, we are of the view that complainant Tagial and P. W. Hakim A.I were in the same tonga in which the deceased was shot and that not only they had seen the incident and identified the two culprits, but that further P. W.
Iddan, who bad come to Larkana for purchasing medicines, had also seen and identified two of the culprits, one of them being the present respondent who fired the fatal shot.
18. The learned counsel for the respondent, however, contended that even if we were to differ from the learned Sessions Judge in the appreciation of the ocular evidence, we should not disturb his finding of acquittal unless we took the view that he had either totally disregarded any piece of important evidence or that he had misread such evidence or that his appreciation of evidence was foolish or wholly incorrect. The scope of interference by the High Court in an acquittal appeal under section 417, Cr. P. C. Came up for consideration before their Lordships of the Supreme Court in Ghulam Mohammad v. Mohammad Sharif (PLD 1969 SC 398) wherein Yaqoob A.I, J. Stated the law on the subject thus:- "The view expressed by the learned Judges that High Court will interfere with an order of acquittal only if the appreciation of evidence by the trial Judge is perverse or foolish is not correct. The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into section 417 the words of limitation employed by the learned Judges. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words the order of acquittal will not be set aside on the ground of appreciation of evidence alone. But if the reasons given by the trial Judge are of speculative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusion from it."
19. On the view that we have taken of the evidence in the case, to allow the decision of the learned Sessions Judge to stand, would, in our view, perpetrate injustice, for we are of the opinion that P. W.
Hakim A.I did see and identify the respondent firing the fatal shot at the deceased while complainant Tagial and P. W. Iddan saw the respondent running away immediately after the incident, having a pistol in his hand, which was the weapon with which the fatal injuries were caused to the deceased. It is true that there is no circumstantial or other corroborative evidence in the case, but we are of the opinion that absence of such evidence does not cast any doubt either upon the testimony of the eye-witnesses or materially weaken the prosecution case. We would accordingly allow the appeal, set aside the acquittal of respondent Fakir Mohammad and convict him of an offence under section 302, P. P. C. And also of an offence under 6 section 13 (d) of the West Pakistan Arms Ordinance, 1965. In view of the fact that the incident took place in 1968 and the respondent presumably was in custody till April, 1972, when he was acquitted by the learned Sessions Judge, we are reluctant to award him a capital sentence. We would accordingly sentence him for the offence of murder to transportation for life and also impose on him a fine of Rs. 1,000, in default of payment whereof he would undergo further R. I. For six months. The fine, if realised, should be paid to the heirs of the deceased. In respect of the offence under section 13 (d) of the Arms Ordinance, we sentence the respon--dent to R. I. For one year. This sentence will run concurrently with the sentence imposed on him for the offence of murder.