1. MUHAMMAD GUL, J.-This appeal is brought by Nusrat by special leave to consider the judgment of a Division Bench of the late High Court of West Pakistan, at Lahore, dated 15-1-1970, acquitting Nasir Ahmad, respondent No. 1 herein, of a charge under section 302/34, P. P. C, for having, along with his brother Muhammad Shah, caused on the 12th June, 1966, the murder of one Shah Mir, by a pahora blow. Muhammad Shafi, who was jointly tried with Nasir Ahmad was acquitted by the trial Court and there has been no appeal against his acquittal.
2. The case for the prosecution is that Shah Mir deceased along with his mother Mst. Fatima (P. W. 11) was going to purchase some cotton-seed. As they reached the Bhaini of the accused in Chak No. 6/8-R, the deceased was attacked by Nasir Ahmad, respondent No. 1, and his brother Muhammad Shafi, of whom the latter caught hold the deceased froth. Behind clasping him with his arms and respondent No. 1, struck the deceased with a pahora on the head. Besides Mv. Fatima, the incident was witnessed by Nura (P. W. 10) and Ghulam (P. W. 12), who were attracted to the spot on alarm raised by Mst. Fatima (P. W. 11), and the appellant and his brother decamped from the scene. Shah Mir died later in the hospital.
3. Mst. Fatima then sent one Ahmad to bring Nusrat (P. W. 13) her brother, to whom she narrated the occurrence. The latter took the injured who was then unconscious, to the hospital at Talumba. On a message being sent from the hospital, Faizullait Khan (P. W. 16), Head Constable arrived and recorded the statement of Nusrat which formed the basis of the F. I. R. In the F. I. R. Motive given was that in the consolidation proceedings some land of respond--ent No. 1 and his brother had been given to the deceased in exchange for some of his land. Respondent No. 1, and his brother demanded Rs. 1000 from the deceased, on account of difference in quality, the land of the deceased being inferior in quality than the land he got from the respondent and his brother. The deceased refused to pay.
4. The injury suffered by Shah Mir was a lacerated wound, 7/8" x 1/8" X 5/8", on the right side of scalp, little above the right ear. The injury thus caused fractured the right temporal bone of the deceased extending to the base of skull causing coagulation of blood- over the membranes of the brain over the right temporal region and the base of the skull. This was sufficient in the ordinary course of nature to cause death.
5. At their trial, respondent No. 1 and his brother, Muhammad Shafi pleaded their false implication at the instance of Nazar Hussain Shah who was leader of the opposite faction in the village. To refute the alleged motive they produced copies of consolidation proceedings to show that he and his brother had agreed not to take any compensation for the land they were made to give in exchange for the land given to them in return was of the same quality.
6. The trial Court took the view that the eye-witnesses were interested and the motive alleged by the prosecution was false because Shah Mir owned no land himself and further that respondent No. 1 and his brother according to the copies of the consolidation proceedings had agreed to part with their land without charging any compensation in money. Even the presence of Mst. Fatima P. W. At the time of incident was doubted. The learned trial Judge also opined that the prosecution has intentionally suppressed the manner in which the incident had taken place. The learned trial Judge also doubted the participation of Muhammad Shafi because in his opinion, respondent No. 1 could not have risked a pahora blow to his real brother, which was a distinct possibility if his brother was clasping the deceased front behind. In such a situation by a slight evasive movement by the deceased on whose head the blow was aimed, the blow might well have landed on Muhammad Shafi.
7. The learned trial Judge also observed that the main prosecution witnesses being under the influence of one Nazar Hussain Shah, had falsely implicated one Muhammad Shall, who was accordingly acquitted. The trial Judge, however, convicted respondent No. 1 on the basis of the ocular evidence coupled with the recovery of pahora and medical evidence and sentenced him to transportation for life.
8. On appeal, the learned Judges in the High Court took the view that event the conviction of Nasir Ahmad cannot be sustained because Mst Fatima appearing as the principal prosecution witness had made a number of damag--ing admissions which tended to show that the while case was engineered Nazar Hussain Shah who had procured Nura his tenant and Ghulam his servant as prosecution witnesses in collusion with Nusrat (P. W. 13), the deceased's maternal uncle to support a false case against respondent No. 1.
9. Learned counsel for the appellant submitted that the impugned judgment acquitting the respondent No. 1 is against the weight of evidence both direct and circumstantial, linking respondent No. 1 with tae commission of crime. It was also submitted that the evidence of Mst.
10. Fatima (P. W. 11) was wrongly excluded and the two eye-witnesses Nura and Ghulam had no animus against the respondent No. 1 to falsely implicate him, and that their evidence could not have been brushed aside on the solitary consideration that Nazar Hussain Shah is taking some interest in the prosecution case. It was submitted that interest shown by Nazar Hussain Shah was entirely compassionate to help the aggrieved family and not out of any ulterior motive or partisan considera--tions. In our opinion, the argument overlooks the facts on record. The statement made in her cross-examination by Mst. Fatima affected the entire prosecution case with serious doubt and went a long way to support titer defence plea that the respondent No. 1 and his brother were being prosecuted at the instance of Nazar Husain Shah. There is no love last between Nazar Husain Shah and his brother and Nasir Din Shah both of whom had contested elections against each other. She also admitted that Nusrat has been the munshi of Nazar Husain Shah for about 12 years and before Nusrat actually lodged the F. I. R. He bad telephoned Nazar Hussain Shah who instructed him that the report be made against respondent No. 1 and his brother Muhammad Shall because they had opposed him in the election. She also admitted that on the day following the day of occurrence, Nazar Husain Shah came to Chak 6/8-R and offered to bear the expenses of the case and had also gone to see the police in connection with the case. It is difficult to imagine how the prosecution case can survive in the face of these damaging admissions made by the mother of the deceased who is alleged to have accompanied the deceased on the fateful day.
11. For the foregoing reasons, the learned Judges of the Division Bench came to the only logical conclusion that the conviction of respondent No. 1 could not be maintained and we dismiss this appeal.
12. Nasir Ahmad respondent was lodged in Jail pursuant to the orders of this Court dated 22-1-1971. He shall be set at liberty forthwith, unless his deten--petition is required in any other case.