1986 P Cr (PLP)

(7) Three punctured gunshot wounds each measuring " x " x muscle deep on the lateral aspect of left thigh pellets detected from the wound. In the opinion of the doctor the injuries appears to have, been caused by a discharge after fire‑arm such as gun. All the injuries were anti‑mortem. Distance of injuries was within four feet. From the external as well as internal examination the doctor was of the opinion that the death of the deceased was due to shock and haemorrhage and also due to laceration of brain consequent upon the all injuries. Deceased Muhammad Bux son of Hap Shahdad. (1) Punctured gunshot wound " x " x cavity deep on the lower part of right back. Wad pieces and pellets detected from the wound. (2) Big punctured gunshot wound 3" x 5" cavity deep on the middle of stennum, bone is fractured. (3) Punctured gunshot wound 2" x 2" x cavity deep on the epigastrium region. In the opinion of the doctor, the death of the deceased was due to shock and haemorrhage consequent upon the injuries mentioned above. The external injuries appeared to have been caused by discharge from fire‑arm such as gun. Deceased Hap Shahdad son of Photo Gudaro. (1) Punctured gunshot wound " x " x cavity deep on the lower part of right back. (2) Big punctured gunshot wound 2" x 2" x cavity deep on the epigastrium region. (3) Two punctured gunshot wounds each measuring " x (4) Punctured gunshot wound 2" x 2" x cavity deep on left right lumber region. (5) Lacerated wound 6" x 4" x muscle deep on the upper part and the lateral side of right thigh. (6) Two punctured gunshot wounds each measuring 1" x x muscle deep below the left elbow joint. The doctor was of the opinion that the death of the deceased was due to shock and haemorrhage consequent upon the injuries mentioned above. The death was instantaneous. The nature of weapon used was discharged from fire‑arm such as gun. The learned trial Court held that deceased Shahdad, Khuda Bux and Muhammad Bux died on account of fire‑arm injuries. On the assessment of evidence he convicted the appellant and acquitted the co‑accused Punhoon. The case against the present appellant rests on the ocular testimony of complainant Hap and P.Ws. Mahi, Rasool Bux, Rahim and Noor Muhammad. In the previous trial the witnesses have exonerated the accused persons who were facing trial and it is, therefore, necessary to refer to their evidence. P.W. Mahi has stated that 10‑12 persons armed with rifles were present and he identified only one person that is the present appellant, who was armed with rifle and he fired rifle at Hap Khuda Bux and Hap Shahdad at the tube‑well at the distance of about 400 feet from the house. He was confronted with the previous statement. In his statement he has stated that he had seen the culprits from the distance of 400 feet. When he came out of the house Hap complainant flashed the torch. In his previous statement he has stated that he had seen six persons armed with rifles. He has further stated that he .had not identified others with accused Muhammad to be Janib, Misri, Ali Hassan, Gullan and Punhoon. In his 161 as well as 164 statement. He has admitted that complainant Hap has been murdered and in that case Ali Ahmad, Bahadur and Bano Gudaras are accused. P.W. Noor Muhammad had also not supported the case against the accused who were. facing trial in the previous trial but has implicated the present accused in the present case. He was confronted with his previous statements recorded under sections 161 and 164 wherein he had given the names of six persons who had been acquitted. Same is the position with regard to deposition of Muhammad Rahim and Rasool Bux. Complainant Haji was examined in the previous trial and he had also exonerted the accused facing trial in that case. The learned Sessions Judge has believed the statements of these witnesses on the ground that they had given the true narration of facts. As the witnesses have narrated two different versions at two different stages, therefore, their statement cannot be accepted as gospil truth. There must be some convincing evidence to convict the accused. The witnesses have contradicted themselves. They have specifically named the accused in their '161 and 164 statements but they did not depose against those accused who have been acquitted. The witnesses were declared hostile. They are self‑condemned liars. The evidence of such witnesses has to be read with caution and there is no corroborative piece of evidence in this case as the abscondence of the accused have been ruled out by the trial Court itself.

7. It is pertinent to point out that the statements of the witnesses were recorded in 1984 in the trial against the appellant. The incident took place in 1975 and the witnesses have exonerated the accused in the previous trial. It is, therefore, doubtful if the witnesses have remembered verbatim their evidence after the expiry of about 10 years of the incident. Then the identification of the accused were on the torch light and implicit reliance cannot be placed on such type of identification. The incident admittedly occurred at about 9‑30 a.m. The ocular evidence is contradicted by the medical evidence. The witnesses in their 161 and 164 statements have stated that the present appellant was armed with rifle. In the present trial two witnesses have stated that the appellant was armed with rifle whereas the two witnesses have stated that he was armed with gun. According to the medical evidence the deceased had received gunshot injuries. The nature of the injuries would show that the deceased had died on account of gunshot injuries and not rifle injuries. It has been stated by the P.Ws. in their earlier statements that the present appellant was armed with rifle, therefore, the appellant cannot be convicted on this evidence as there in no injury by means of rifle on the person of the deceased.

8. For all the aforesaid reasons the prosecution has not been able to establish the case against the present appellant. He is, therefore, acquitted of the charge and the appeal is accepted as such. He shall be released fortwith, if not required in any other case. S.G.D. Appeal allowed