' K. M. A. SAMDANI, J.-This murder reference and appeal relate to an incident that took place on the 22nd of December 1968, an Bid day, at 10-30 a.m. In a bazar of village Chak No. 163/R. B. Which is situate 5 miles from the Police Station Chak Jhumra in Lyallpur district.
' According to the prosecution there are two mosques in the village, one for local inhabitants of the village and the other for the displaced persons from India who have settled down in that Chak. In one mosque the Eid prayer had been said and in the other the prayers were yet to be offered when six brothers, namely, Maqbool Ahmad, Manzoor Ahmad, Muhammad Yaqub, Dildar Muhammad, Abdul Ghafoor and ivlunawar Khan sons of Malang Khan Rajput appeared in the bazar from the Western side while six other persons, namely, Abdul Aziz. An old man of 70, accompanied by his sons Iltaf, Anwar and his nephew Ilyas and two others, namely, Abdul Majid and Sultan Khan also arrived there from the Eastern side and collected in front of the shop of the said Abdul Majid. The former group was allegedly unarmed while from amongst the latter Abdul Asiz alone was empty- handed, Iltaf, Anwar and Ilyas were armed with guns, Sultan with a pistol and Abdul Majid with a knife. On account of a previous enmity between the two groups, Abdul Aziz is stated to have exhorted his companions to attack the six brothers. Consequently they opened fire as a result of which all the six brothers sustained injuries.
' In addition to them eight other unconcerned persons were also hit out of whom one, namely Shaukat Ali a boy aged hardly 11 or 12 died on the spot. The other unintended victims of the firing are Mst. Bushra aged 12, Muhammad Rafique aged 8, Ilam Din aged 55, lftikhar Ahmed aged 23, Israr Ahmad aged 9, Mst. Irshad Begum aged 21 and Ehsan-ul-Haq aged 7. However, the incident was reported to the police by one Zafar All who claimed to be a witness to the occurrence but was lucky enough to escape injury. The police thereupon embarked upon the investigation of the case, arrested the six persons accused by the complainant, effected certain recoveries from them and submitted a challan to the Court under sections 148, 302 and 307 read with section 149, P. P. C. Out of the six accused Iltaf was medically examined after his arrest but subsequently he absconded and thus could not be brought to trial. The remaining five were committed to the Court of Session for trial and tried by Mr. Muhammad Amir Malik, Additional Sessions Judge, Lyallpur. The learned Additional Sessions Judge, acquitted Abdul Aziz accused on the 24th July 1971, and convicted the remaining four under sections 148, 302 and 307, P. P. C. Read with section 149 of the same Code and sentenced each of them to one year R. I. On the first count, to death and fine of Rs. 200 on second.
To 7 years' R. I. On the third. Hence the reference under section 374, Cr. P.' C. By the trial Court and the appeal by the four convicts.
2. Out of the thirteen injured persons all the six injured brothers were examined as witnesses at the trial besides Israr Ahmed, Barn Din, Mst. Bushra, Ehsan-ul-Haq and lftikhar Ahmad. In addition to them Zafar Ali complainant and Ghulam Muhammad were also examined as witnesses but neither of them had any injury on his person. The learned trial Court while assessing the value of the ocular evidence on record came to the conclusion that neither the testimony of the six brothers could be relied upon nor that of P. Ws. Zafar Ali and Ghulam Muhammad. After having scrutinized their statements, we agree with the learned trial Court that the enmity of these witnesses against the accused persons is so very well established on record and that no reliance can be placed on their word particularly when there are circumstances in the case to suggest that their version at least to the extent of the involvement of Abdul Majid and Sultan appellants in the incident is false.
' In the first place, the pistol with which Sultan appellant had been allegedly armed was not recovered. In the second, no one sustained a single injury caused by a sharp-edged weapon which circumstance indicates that Abdul Majid appellant never took any active part in the incident.
Thirdly, Israr (P. W. 3) not only failed in his statement to mention any part played by these two appellants but also stated that he did not know what arms they had carried although he described the arms of the other appellants and also the details of the incident with considerable clarity. He also admitted that when the other accused opened fire, Sultan appellant had already left the scene and Abdul Majid appellant had gone inside his shop and that in fact on the day of occurrence the shop of Abdul Majid appellant was open and he was vending his merchandise.
Similarly Ilam Din (P. W. 24) did not charge Sultan or Abdul Majid appellant with any active role and Ghulam Muhammad (P. W. 6) at first denied categorically having witnessed Sultan appellant firing but later added reluctantly that he might have fired' his pistol.
' From this evidence it is clear that the case against Abdul Majid and Sultan appellants is not free from clOubt. Some of the witnesses also stated that Sultan appellant sustained some injuries in the course of the incident perhaps to make the case against him stronger. But he was never medically examined. In fact, the failure of the police to have him examined contradicts the assertion that he was injured. Further, Abdul Majid and Sultan appellants are not related to the other three accused and the absconder who belong to one family.
3. In view of these circumstances we hold that Abdul Majid and Sultan appellants are entitled to acquittal.
4. Now we are left with the question of the guilt of Anwar and llyas appellants to be determined in the light of the eye-witness account given by Mst. Bushra, Ehsan-ul-Haq, Israr and Ilam Din. Out of these four witnesses, Ilam Din alone is an adult person. The remaining three are child witnesses, alst. Bushra being the eldest of them at the age of 10. In our opinion, therefore, the learned trial Court rightly excluded the testimony of Ehsan-ul-Haq and Israr P. Ws. From consideration. It, however, did place reliance on the statement of Mst. Bushra P. W. To a limited extent. In our opinion it is contrary to the principles of safe administration of, justice to give any credit to this witness because she admitted in her cross-examination that she had been tutored by Maqbool Ahmad, Manzoor and Dildar P. Ws. Whose own credibility has been seriously questioned by the trial Court.
The case of Ilam Din P. W. However, is different inasmuch as there is nothing on record to show that he was in any manner inimical to the appellants. According to him when he came to the bazar the firing was on and he was also hit and injured. The medical evidence shows that he sustained an abrasion 1/3' x 1/3' on the front aspect of the left side of the chest in its lower part. This injury was adjudged simple by the doctor because his radiological examination failed to reveal any damage to any of his ribs or other bones. But the doctor was of the opinion that the injury had been caused by a blunt weapon while the witness himself has deposed that he was hit by the shot tired by Ilyas appellant. The doctor's opinion can be reconciled with the statement of the witness only in case the witness was at such a long distance from the man who had fired the shot that by the time the shot reached him it had lost its sting and thus caused merely an abrasion of the kind which could also possibly be caused by an ordinary blunt weapon. Such being the case and when there were three persons firing, we cannot trust the judgment of this witness when he says that ne was hit by a shot fired by a particular person. It may be noted here that he could not say by whose shot Shaukat deceased was killed. He also admitted in his cross-examination that he could not find out as to who was injured at whose hands except himself.
' Therefore, it is not possible on the sole testimony of this witness, although he may be a truthful one to determine responsibility for the injury sustained by him.
' In fact the alleged collaboration of Sultan and Abdul Majid appellants with rest of the accused having been held to be doubtful, the remaining two appellants and the absconder cannot be held to be the members of an unlawful assembly. Therefore, the liability of each of them will have to be determined separately. It is abundantly clear, from the evidence on record, that neither Ilyas appellant nor Anwar appellant is responsible for the death of Shaukat Ali deceased.
' Apart from the fatal injury sustained by the unfortunate boy there are 13 other persons who have been injured. Out of all the injuries sustained by them only three have been found grievous; one on the person of Dildar Muhammad P. W., one on the person of Icrar Ahmad P. W. And the third on the person of Mst. Irshad Begum.
' Another material truth that emerges from the medical evidence on record is that no injury to any of the victims of the firing was caused above the waist. \The only exceptions are the fatal shot received by the deceased in his chest, O lacerated wound caused to Muhammad Yaqub P. W. On his left forearm and two lacerated wounds sustained by Dildar Muhammad P. W. On his left arm although in all about 24 shots appear to have hit the various victims in the course of the incident.
This circumstance in our view indicates that the assailants were not shooting to kill but merely to hurt. Therefore, we cannot hold Anwar and Ilyas appellants responsible for the death caused by the absconder or even hold them guilty of a murderous assault either on the six injured brothers or on the other injured witnesses.
5. The question remains as to whether Anwar and Ilyas appellants can be held liable even for the simple and grievous hurt caused by them to various persons. Their defence is that the gun allegedly produced by Anwar appellant belongs to his uncle Ghulam Sarwar and the incident in question was the result of the beating given to Iltaf absconder by Maqbool, Munawar, Dildar, Yaqub and Ghafur P. Ws. On seeing these brothers beat up the absconder, the people who were around threw brick-bats at them whereupon they in turn opened fire. At this juncture the said Ghulam Sarwar appeared at the scene and fired at Maqbool P. W. And his brothers. It was by the shots fired by Ghulam Sarwar that those brothers were injured, while the other people in the bazar sustained injuries at the hands of those brothers themselves. The evidence on record does not fully support this version. Therefore, it cannot be accepted as a whole truth, either. But the difficulty is that Ilam Din (P. W. 24) who appeals to be the only witness whose testimony can be taken seriously has failed to give the details of the incident. He does hold Ilyas, Anwar appellants and the absconder responsible for the firing but does not explain how Dildar Muhammad P. W. Came by the four blunt wear on injuries found on his person immediately after the incident. He does not also mention the injuries sustained by the absconder. And in one particular at least he has lied. He explains presence at the scene by stating that he was going to the shop of one Charagh Kumhar at that time. But as to the location of the said shop he testified before the committing Magistrate, that it was in a bazar different from the one in which the firing took place although at the trial he insisted that it was in the Chowk where the trouble occurred.
' In our opinion, therefore, it is not safe again to hold the appellants guilty of any offence on the sole testimony of this witness.
' It is pertinent to note that some important witnesses in the case were not examined by the prosecution. For example, Mst. Irshad Begum, Mustafa, Sardar Muhammad and Muhammad Rafique. The last mentioned being a boy of eight, the prosecution was justified in excluding him. But Mst. Irshad Begum was a girl 21 years of age. Instead of putting three child witnesses in the witness- box it would be much more helpful if Mst. Irshad Begum had been examined as a witness. Similarly, instead of examining Iftikhar Ahmad P. W., who had not been mentioned in the first information report and who is not a disinterested witness, the prosecution would do well to examine Sardar ,Muhammad who was specifically mentioned as a witness in the F. I. It. But he was also given up.
The third person Mustafa is the man to whom the prosecution witnesses have assigned the role of a hero. According to them, Mustafa claimed up a kotha in the course of the incident and threw an earthen pot, variously described as Koonda and Daoura, on the head of the absconder, then dived from the top of the kotha and caught hold of the absconder thus trying to render him ineffective.
But, despite his active participation, the prosecution refused to examine him. The only excuse given by them was that these witnesses had been won over which may as well mean that they were prevailed upon to tell the exact truth instead of blindly towing the prosecution line, if they bad been examined they would have perhaps told a different story all together.
6. In these circumstances it is not possible to hold even Anwar and Ilyas appellants guilty of any offence. Consequently we refuse to confirm the sentence of death passed upon the appellants, accept their appeal, set aside their convictions and sentences and acquit them.