' SH. IJAZ NISAR, J.---Shahbaz Khan son of Mehr Gul Khan, Mehr Gul Khan son of Mawaz Khan, Attai Khan son of Shahbaz Khan, Gul Jahan son of Attai Khan, Muhammad Khan son of Daraz Khan and Ahmad Khan son of Daraz Khan were tried for the murder of Shah Wali deceased. Learned Sessions Judge, Mianwali by his judgment dated 26-6-1976 acquitted them by giving them the benefit of doubt.
' The State has filed this appeal to challenge their acquittal.
2. The prosecution case in brief is that the accused who were closely related inter se suspected Shah Wali deceased of maintaining illicit intimacy with Mst. Gul Bibi uterine sister of Shahbaz Khan accused.
3. On 23-9-1974 at about Degarwela, Shah Wali deceased accompanied by Muhammad Amin P.W.
Was having a round of his Gowara crop when the accused carrying fire-arms appeared from the Dera of Attai Khan accused. Mehr Gul accused challenged Shah Wali whereupon Muhammad Khan fired from his rifle hitting on his right hand. Shahbaz Khan fired a rifle shot at him at his chest.
Thereafter, the other co-accused namely Attai Khan, Gul Jahan and Ahmad Khan fired rifle shots at him. Mehr Gul Khan who was carrying .12 bore gun also fired at him. The occurrence was witnessed by Muhammad Amin P.W.8, Muhammad Hayat P.W.9 and Pehlwan (not examined). The deceased died on way to the Police Station, Mochh. Muhammad Amin P.W. Reported the matter to the police vide F.E.R. Exh.PA recorded at 10-00 p.m. At P.S., Mochh by Ghulam Ali A.S.1. P.W.10.
4. Ghulam Ali A.S.I. Visited the spot and picked up five empties of .303 bore and two empties of .12 bore and sealed them into parcels.
5. Mian Ghulam Muhammad S.I. P.W.11 arrested the accused. Shahbaz Khan led to the recovery of rifle Exh.P1, Mehr Gul Khan accused to gun Exh. P.2, Attai Khan accused to rifle Exh.P3, Ahmad Khan accused to rifle Exh.P4, Muhammad Khan to rifle Exh.P5, Gul Jahan to rifle Exh.P6, Ghulam Hyder P.W.7 and Khan Zaman (not produced) attested the recovery memos.
6. Dr. Asghar Ali P.W. 4 conducted autopsy on the dead body of Shah Wali deceased and found the following injuries on his person:
(1) A fire-arm wound of entry 1/2" x 1/4" on the left side of thumb on the middle side at distal joint.
(2) An exit wound 1/4" x 1/4" on the post side of right hand between the origin of thumb and index fingers 2-1/2" from writ joint.
(3) A fire-arm wound of entry 1-3/4" x 1/2" on the front of left chest 2-1/2" below left nipple 3-3/4" from mid-line.
(4) An exit wound of fire-arm 1/2" x 1/4" on the front of left chest 2-1/2" below outer side of injury No,3.
(5) A fire-arm wound of entry 1/4" x 1/4" on the front of left chest 1" below injury No,4 and 3" from midline.
(6) A fire-arm wound 1/2" x 1/2" on the front of left chest 4-1/2" below nipple 4" from midline. A piece of metal was removed from the wound.
(7) A fire-arm wound 1/2" x 1/2" on the front of left chest 4-1/2" below injury No,5 wound of entry.
(8) Multiple fire-arm skin injury on the front of chest and in this place two pieces of metal were recovered.
7. The death was caused by shock and bleeding on account of injuries Nos.4 and 7.
8. The prosecution examined Muhammad Amin P.W.8 and Muhammad Hayat P.W.9 as eye- witnesses. Ghulam Hyder P.W.7 testified to the recoveries of crime empties from the spot and the weapons of offence from the accused. Ghulam Ali A.S.I. P.W.10 and Mian Ghulam Muhammad S.I.
P.W.11 investigated the case.
9. The crime empties were sent to the Fire-arms Expert for comparison with fire-arms recovered from the accused and according to report Exh.PY/3 of the Fire-arms Expert, the crime empties had been fired from the weapons of Shahbaz Khan and Mehr Gul Khan.
10. The accused denied the prosecution allegations and attributed the case to enmity. No evidence was called by them in defence.
11. The learned trial Court disbelieved the motive, the ocular testimony and the recoveries and acquitted the accused by giving them the benefit of doubt.
12. Learned counsel for the State submits that the witnesses examined by the prosecution have fully established the case against the accused and the judgment is based on surmises and conjectures and is not supported from the material on record and that the occurrence had taken place in broad daylight and the F.I.R. Which was lodged promptly gives a detailed account of the occurrence and the specific role played by each of the accused.
13. The learned trial Court had come to the conclusion that both the eyewitnesses were chance witnesses and resided at a distance of about one mile from the spot and that the reasons given by them for their presence at the spot were not plausible. The learned trial Court further observed that both the eyewitnesses were related to the deceased and bore grudge against the accused.
Muhammad Hayat P.W. Admitted that in the consolidation proceedings, the land of his father was given to Mehr Gul accused. The cousins of the deceased had given beating to Mst. Alam Khatoon daughter of Mehr Gul Khan accused for which a complaint under section 323/326, P.P.C. Was instituted against them.
' There is a conflict between the ocular evidence and the medical evidence in respect of the shots allegedly fired by the accused and the number of injuries found on the body of the deceased.
14. The recoveries of crime empties and weapons of offence also do not stand proved through reliable evidence. Ghulam Hyder P.W.7 who was examined to prove the recoveries is closely related to the complainant party and it was a strange coincidence that he was witness to the recoveries of crime empties taking place on 24-9-1974 and the recoveries of weapons of offence taking place on 1-10-1974 and 2-10-1974. Moreover, he was not a witness of the locality wherefrom the recoveries were effected. The circumstance of the crime empties matching with the fire-arms recovered from the accused is without any significance because they were kept by the police in its possession till the arrest of the accused. The crime empties were recovered on 24-9-1974 and were deposited in the Police Mall Khana on 26-9-1974 after the arrest of the accused. Furthermore, Shahbaz Khan ,and Mehr Gul Khan accused were not asked to explain the matching of the crime empties with the fire-arms recovered at their instance in their 'examination under section 342, Cr.P.C.
15. For the foregoing reasons, the prosecution has failed to establish its case against the accused beyond all shadow of doubt and they were, therefore, rightly acquitted.
16. We are fully satisfied with the appraisal of evidence done by the learned trial Court and while evaluating the evidence, we find that there has been no misreading of evidence resulting in any miscarriage of justice. Consequently, we see no reason to interfere with the judgment of the learned trial Court and dismiss the appeal.