1984 P Cr (PLP)

Muhammad Ishaq Khan for Petitioner. H. Saadullah Khan Asstt. A. G. for the State. Date of hearing: 1st October, 1983. This criminal revision petition has been filed by the convict-accused Muhammad Nawaz alias Mamad against his conviction under sec tion 307/34, P. P. C., a d sentence of four years' R. I. and a fine of Rs. 9,000, in default of payment of which, he has to undergo further R. I. for one year, awarded to him by Mr. Farzind Ali Khan M. I. C., Bannu with section 30 powers vide his judgment, dated 17th April, 1983 which was maintained in appeal by the learned Sessions Judge, Bannu, vide his judgment, dated 19th June, 1983.

2. The facts of t e case, as disclosed, by P. W. Mst. Rambela on 30th February, 1982 at 9-45 a. m. in Police Post Kakki, show that on the said date at about 8-00 a. m. she was present in her house and her husband Dilawar Khan went out of his house to go to Naurang She at once heard the report of fire shots, she came out of the house and saw that accused Muhammad Amin, Mir Ayub, Ali Bat and Muhammad Nawaz alias Mamad, the present petitioner, all armed with topaks, were sitting in a Morcha and had been firing at Dilawar Khan who was hit with the shot fired by accused Mir Ayub and fell down. The complainant, Mst. Rambela, was fired at by accused Ali Bat injuring her, on the left hand and by the present accused-petitioner with which she was hit on the left knee joint. She took` her husband inside the house white the accused were still present in the Morcha and firing was on. The cause of enmity was previous blood fued between the parties. This report, Exh. P. A./1, was incorporated in F. I. R. No. 16 of Police Station, Miryan, copy Exh. P. A. Accused Muhammad Amin, Mir Ayub and Ali Bat are absconding whereas the present petitioner was arrested on 5th April, 1982. He was charged under section 307/34, P. P. C. to which he pleaded not guilty and claimed trial.

3. The prosecution produced as many as 13 witnesses to prove the case against the petitioner, out of whom P. W. 4, Mst. Rambela, P. W. 5 Dilawar Khan and P. W. Mst. Islam Bibi are eye-witnesses of the occurrence. P. W. Doctor Fazle Mehmood Khan had examined injured P. W. Dilawar Khan on 20th February, 1982 and P. W. 3, Lady Doctor Farkh Gul Bhittani had examined P. W. Mst. Rambela and P. W. Islam Bibi on 20th February, 1983 at 10.30 a. m. and 12 30 a. m., respectively. P. W. 1, Sultan Ali Khan S. H. O. had investigated the case while the other prosecution witnesses are formal.

4. P. W. 5, Dilawar Khan, has stated that all the accused were armed with double-barrel shotguns. All the four fired at him which proved ineffective whereafter Mst. Rambela arrived at the scene and in the meantime accused Mir Ayub fired a shot at him with which she was injured on the left hand, right thigh and left thigh. Thereafter, accused Ali Bat and Muhammad Nawaz fired at and injured Mst. Rambela. Then all the four accused got up in their 'Morcha'. In the meanwhile, P. W. Mst. Islam Bibi came to the spot who was fired at from the Morcha by the accused and she was also injured. He was taken to the house and he directed his wife Mst. Rambela to lodge the report. Subsequently, some outsiders came and they were taking him to the Police Station but the Investigating Officer met him near Vial Qasuria where he was examined and the injury sheet was prepared and he was sent to the hospital for medical treatment. In cross-examination, he stated that it was 'incorrectly recorded in his statement under section 161, Cr. P. C. that all the four accused fired one shot each at him as a result of which he sustained injuries from the shot fired by accused Mir Ayub. He had stated before the police that the first volley of shots fired by all the accused had missed and then accused Mir Ayub had fired at him effectively, but this statement is missing. He further stated that he had stated before the police that when his wife reached the spot, Mir Ayub got up and fired at him effectively, but this statement is also not recorded. He had stated before the Police that after he was hit and injured, Mst. Rambela and Mst. Islam Bibi came to the spot but he contradicted this statement before the Court. Ire had stated before the Police that both the aforesaid ladies had come to the spot together but he denied it in the Court. He had also stated before the Police that when the two ladies came to the spot together, accused Ali Bat fired at his wife effectively and accused Muhammad Nawaz fired at Mst. Islam Bibi effectively, but he denied it before the Court. He further stated that in fact Mst. Islam Bibi sustained fire-arm injuries at the hands of the accused from the Morcha while Mst. Rambela sustained injuries by the shots fired by accused Muhammad Nawaz and Ali Bat, but he had not so stated before the Police. He further stated that he had stated before the Police that after injuring him and his wife, all the four accused climbed up the Morcha from which they fired at Mst. Islam Bibi, but his Police statement does not disclose it. He also stated that it was incorrectly recorded in his Police statement that all the accused had fired at them from the Morcha and that the accused had already taken their positions in the Morcha. He denied the suggestion that some unknown persons had fired at him from the Morcha and he had falsely charged the accused on account of previous enmity. P. W. 4, Mst. Rambela, has stated that on hearing the report of firing, she went out of her house and saw all the four accused firing at her husband who was injured with the shot fired by accuse d Mir Ayub and fell down. She was injured on the left hand by the shot fired by accused Ali Bat and on the left leg and thigh near knee joint by the shot fired by accused Muhammad Nawaz. Thereafter, the accused fled from the spot and got up in the Morcha. In the meantime, Mst. Islam Bibi reached the spot and the accused also fired at her from the Morcha, with which she sustained injuries. In cross -examination, she stated that she had disclosed in her report that after she reached the spot, all the accused ran from the spot and climbed up the Morcha, but this part is also missing from the report. She had disclosed in her report that Mst. Islam Bibi had come to the spot and she too was fired at by the, accused from their Morcha, and she got injured but this is also missing the F. I. R. She further stated that it was incorrectly recorded in the report that all the accused had taken their positions in the Morcha. She further stated in cross-examination that all the accused were armed with D. I. B. shotguns and when she reached the spot, she saw accused Mir Ayub standing and firing effectively at her husband and before that a volley of shots had been fired at her husband. The accused fired at them from, the front of their baithak but this is not mentioned in the report. She has further stated that when Mst. Islam Bibi reached the spot, the accused ran and climbed the Morcha, and that she and Mst. Islam Bibi took Dilawar Khan to their house, but this is also not mentioned in the report. Mst. Islam Bibi has stated that she and P. W. Mst. Rambela were present in the: house of Dilawar Khan when they heard the report of fire shots. Mst. Rambela immediately rushed out and she followed her. When she reached the spot, all the four accused climbed on Morcha, and asked her not to come near the spot and then all of them fired a shot each at her as a result of which she was injured. In cross-examination, she admitted that on reaching the spot, she found Dilawar Khan and Mst. Rambela already injured. She has further stated that she had stated to the Police that on arrival at the spot, the accused climbed the Morcha, but this is missing therefrom. Her Police statement shows that when she reached the spot, she found the accused firing from the Morcha, but she denied it in the Court. She further stated that she had stated to the Police that Mst. Rambela was also injured, but this is also missing in her Police statement. She admitted in her cross-examination that she had correctly stated before the Police that she had not identified the accused but she denied it in the Court. The present petitioner denied the commission of the offence in his statement under section 342, Cr. P. C. end alleged that he bad been falsely charged on account of previous enmity. He did not producer any defence.

5. If shall be seen from the ocular evidence, as reproduced above, that the eye-witnesses had made many material improvements in their Police statements when they appeared as witnesses in the Court. They had also contradicted many important facts, which they had earlier men tioned to the Police. The report lodged by Mst. Rambela does not disclose that the accused had fired a first volley of shots ineffectively at her husband Dilawar Khan. It also does not disclose that the accused were at that time standing near their baithak from where they had fired the first volley and then accused Mir Ayub got up and fired effectively at Dilawar Khan. On the contrary, the report shows that the accused had taken positions in a Morcha, and were firing at Dilawar Khan. The report also does not disclose that Mst. Islam Bibi had arrived at the sport and she was also fired at and injured by the accused. P. W. Dilawar Khan had stated before the Police that he was already injured when Mst. Rambela appeared at the scene. He also did not disclose before the Police that Mst. Islam Bibi had also arrived at the spot and was fired at by the accused. In his Police statement, be had also not charged accused Mir Ayub for firing a second shot at him and injuring him. Mst. Islam Bibi had stated before the Police that she could not identify the assailants when they had fired at her from behind the Morcha.

6. The earlier version of the prosecution case, as disclosed to the Police, would show that the assailants were sitting behind the Morcha, of the house of the accused and from there they fired at the three injured persons. This would naturally lead to the conclusion that, firstly, the assailants could not be identified, and secondly, it could not be determined as whose shots had bit which of the three eye-witnesses. After lodging the report and making statements before the Police, the complainant party became conscious of the weakness of their case and so they introduced very material improvements in their statements when appearing as witnesses in the Court. It is also doubtful that the petitioner was present near his baithak when he fired at the eye-witnesses, far and had also climbed the house and had also fired therefrom, then what was the reason for him to be standing outside simply to be identified by the complainant party. The prosecution case, as disclosed before the Court, was quite different from the one made out in the report and before the Police. The evidence of injured eye-witnesses can be disbelieved if it appears to be false and in contradiction of the earlier version of the occurrence.

7. It is alleged by the prosecution that there was previous enmity between the parties and that led to the present occurrence. However, motive of previous enmity is a double edged weapon and cuts both ways. This motive can be advanced in support of the prosecution case as well as to falsely implicate innocent persons.

8. It was again alleged that the petitioner had absconded but met abscondence for a period of time would not prove the guilt of a person if there is no other evidence to connect him with commission of the offence. It was further urged by the learned Assistant-Advocate-General that it was a broad daylight occurrence and the accused was directly charged and both the parties being relations inter se, there was no question of false charge. But these contentions are not supported by the case made out before the Police. The assailants could not be identified, because, according to the earlier version of the occurrence as the assailants had fired from behind the Morcha, and even if it was a day light occurrence, it was difficult to identify the assailants.

9. For the aforesaid, I have come to the conclusion that the prosecu tion had failed to prove the offence against the present petitioner. I would, therefore, accept this criminal revision petition, set aside his conviction And sentenced and acquit him of the offence with which he has been charged and convicted. He shall be set at liberty forthwith unless he is required in any other case. M. Z. M. Revision accepted.