1985 PLP 70 (MLD)

4. Hamidullah and Shafiullah accused were found injured. They were medically examined by Dr.Ashiq Ali (P.W.1) at the instance of the police on 19-6-1977. Shafiullah was found to have suffered two abrasions and one tear, on the shoulder and head and Hamidullah was found to have suffered two abrasions. The injuries were opined to have been caused by blunt weapon and were declared simple.

5. As Muhammad Hanif, S.I./S.H.O had died before the trial, the exhibits were proved through the statement of Muhammad Siddique, M.H.C. (P.W,8), who had been working with the deceased Sub-Inspector, knew his handwriting and identified his signatures.

6. Autopsy on the dead body of Slier Ali was conducted on the same day at 5-30 p.m. There was a fire-arm wound of entry on the front of left shoulder one inch below its lip. A piece of wad and card-board was found in the clothes at that place. There was no blackening or tattooing. There was a grazed fire-arm wound " x ", on the antro-lateral aspect of right upper arm 2-3/4" above the crease of right elbow. There was no blackening or tattooing. According to the opinion of the, doctor, the deceased had expired due to injury on the left shoulder.

7. The eye-witness account has been deposed by Muhammad Yousaf complainant (P.W.5), Ataullah (P.W.6) and Muhammad Amir Khan (P.W.7). Sher Ali deceased was first cousin of Muhammad Yousaf complainant (P.W.51 and sister's son of Ataullah (P.W.6). Mst Bibi, real sister of Sher Ali .deceased, is married to Said Amir, real brother of Muhammad Amir (P.W.7). Muhammad Yousaf complainant (P.W.5) has re-stated what he had deposed at the time of registration of the case. He has stated that Sher Ali was fired at by Ghazi Khan from a .12-bore pistol after raising a Lalkara and the shot had grazed over the right shoulder of Sher Ali deceased and that when deceased while running was crossing the water-course, Shafi Ullah (acquitted accused) caught him from behind and Ghazi Khan who had chased him came from the southern side of the hotel, fired the fatal shot on the chest of the deceased. He has stated that the gun which was being carried by Sher Ali deceased hits went off at the time Shafiullah had grappled with him. He has stated that Hamidullah (acquitted accused) had fired a shot at him but the fire missed. According to him the occurrence was also seen by Ataullah (P.W.6) and - Muhammad Amir Khan (P.W.7). Both of whom have corroborated the statement of Muhammad Yousaf. The complainant has also deposed regarding the motive, by stating the incidents which he had deposed at the time of lodging the F.I.R., which have also been noted above while recording brief facts of the prosecution case. P. W. 6 and 7 have also deposed regarding the gun (P.7), rifle (P.6), a broken portion of the gun (P.12), gun crime 'empties (P.9 and P.10), 7-MM crime empties (P.11 and P.13) having been taken into possession from the spot.

8. Muhammad Siddique, H.C. (retired) (P.W.8) has stated that he had registered the case on the statement of Muhammad Yousaf, Since Muhammad Hanif, S.I./S.H.O. died before tire trial, tire recovery memo; prepared by him of having taken into possession gun (P.7), 7-MM rifle (P.6), .12-bore empties (P.9 and P.10), two empties of 7-MM rifle (P.11 and P.13) have been proved by secondary evidence through the statement of Muhammad Siddique. Muhammad Siddique (P.W.8) in cross-examination by the accused has stated that Muhammad Yousaf complainant had been brought to the police station by three constables, namely, Ghulam Taqi, Said Amir and Yaqub, alongwith 7-MM rifle and that before the arrival of Muhammad Yousaf complainant, all the three accused had reached the police station and that he had received a telephonic message from the D.S.P. that tie should not register the case till his arrival and till after the preliminary investigation. He has stated that the present case was registered, first on the orders of the D.S.P. in spite of the fact Ghazi Khan had come earlier for registration of the case. However, in cross-examination by the other party, tie had admitted that he had not recorded both these facts in Karwai police and had not made a note of these facts in writing in any form. lie has also admitted that he had been compulsorily retired from service and was under arrest in connection with the theft of some file.

9. Malik Muhammad Khan, D.S.P. has been examined as C.W.1. He has stated that during investigation he had declared Hamidullah and Shafiullah to be innocent and had directed that Ghazi Khan be challaned. In cross-examination he has stated that according to his report Ghazi Khan was assaulted and he had acted in self-defence, while firing on the other party.

10. Ghazi Khan appellant in his statement under section 342, Cr.P.C. has admitted his relationship with two acquitted accused and has also admitted the previous occurrences having taken place between the parties. He has denied the allegation of having murdered Sher Ali deceased. In answer to the question, "Why this case against you", he has stated:-- "About 20 years ago my brother Akram had fired at Atta Ullah P.W., case under section 307, P.P.C. was registered and Akram was convicted and sentenced to three years R.I. On 25-8-1976, said Akram and Hameed Ullah co-accused and others had injured Yousaf complainant and his brother Sher Bahadur; case was reported and the accused were convicted and sentenced to 31 years R.I. each. Hameed Ullah was on bail in that case during the days of present occurrence. Two days before the present occurrence my nephew had fired at Rehmat Ullah, the maternal uncle of Sher Ali deceased, case under section 307, P.P.C. was reported and the accused has been convicted and only fined. I went to Lahore on official duty on 16-6-1977 and reported back in the police, lines on 19--6-1977. I was deputed on Treasury Guard and so in the morning started with my light bedding. When I reached near the hotel of Hanif, there Shafi Ullah and Hameed Ullah co-accused were already present and they invited me and we started taking tea. After a little while Yusaf complainant with 7-MM rifle and A.. deceased with 12 bore gun reached there and raised a Lalkara to us. We were empty handed. Sher Ali fired the first shot hitting Hameed Ullah and Yousaf complainant fired at me, but I went to lay down and the shot hit a chair. Sher Ali again fired and hit in the Shalwar of Hameed Ullah. Thereafter Shafi Ullah caught hold of Sher All to separate and Yousaf again fired which grazed the shoulder of Shaft Ullah and hit Sher Ali deceased. Thereafter Yousaf complainant started running away towards the north-east to the house of Sessions Judge Mr. Paul, the then Sessions Judge and the Guard were present at the house as it was Sunday and the guard stopped him whereafter he ran to the Jail farm on the east. There tie was taken into custody by Taqi Driver and gunmen of Superintendent Police who reached there on jeep alongwith his rifle. From the spot Shafi Ullah, Hameed Ullah and 1 started for the Police Station and on the way Saleem and Gul Kamand told us about the conspiracy of the deceased, Yousaf complainant and Sadda Khan, who had also provided his gun to the deceased. We then reached the police station. In the Police Station, Muhammad Siddique Muharrir was present and we told him about the occurrence. We were still talking to him when he received the telephonic message and told us that Sher Ali, D.S.P., was reaching the police station. After half an hour Yousaf complainant was brought by Taqi Driver, Said Amir and Yaqub Constables alongwith his rifle. There the D.S.P. and Hanif Sub-Inspector firstly registered case against us and thereafter on my statement cross case against the complainant party was registered. Sher Ali, D.S.P. colluded with the complainant party and fabricated this case against us." In defence he has produced some documents consisting of old F.I.Rs. some statements and report under section 173, Cr.P.C

11. The occurrence in this case is admitted by both the parties. The presence of the appellant and for that matter of the two acquitted accused is also not denied. So also the presence of the complainant armed with his licensed 7-MM rifle is admitted. Complainant has admitted that the .12-bore gun taken from the spot was a licensed gun of Sadda Khan and was being carried at the time of occurrence by Sher Ali deceased.

12. Before examining the plea taken by the appellant, that it was the complainant party who had launched the attack and that the deceased had died of a shot fired by Yousaf complainant, which after having grazed the shoulder of Shafiullah, had hit the deceased, we would like to examine the prosecution evidence in the light of the contentions raised on behalf of Ghazi Khan appellant so as to see whether the prosecution evidence by itself inspires confidence or not, regarding the occurrence having taken place in the manner stated by the prosecution witnesses. This is admitted that in the last of the occurrences which had taken place on 17-6-1977 it was the party of the accused which had attacked and injured Rehmatullah, a relative of the complainant and F.I.R. No. 194/67 had been registered on the same day on the statement of Rehmatullah. In the previous occurrence which had taken place 9/10 days prior to the occurrence which had taken place on 17-6-1977, it was the complainant party who had attacked and injured Muzaffar Khan, a relation of the appellant for which also a case had been registered against Sadda Khan, etc., first cousin of Sher Ali deceased. If the previous occurrences between the parties have to be taken as a motive for the present occurrence, then in the sequence of the occurrences, the complainant party in this case was the last who had been aggressed upon and so the motive to launch an assault will be available to them and thus prosecution cannot take benefit of the motive part of the evidence and the same cannot be safely considered to be a sound corroboration of the ocular evidence. In view of the previous history between the parties, there is no doubt in our mind that the parties were strongly inimical to each other. The inter se, relationship of the witnesses is also admitted. In this view of the matter, we have no doubt that the witnesses, who are related inter se doubtlessly, are inimical also. It is in the light of this situation that we have examined their statements. According to the eye witnesses .12 bore gun (P.7) which Sher Ali deceased was carrying at the time of his death, had went off only once when Shafiullah had grappled, but we have it on record that not only a crime empty, was found in the barrel of the gun when it was taken into possession but an empty was also found on the spot. Both these empties were found to have been fired from .12 bore gun (P.7). It was a single barrel gun, unless somebody would have ejected the first empty, the gun could not have been re-loaded. There is no allegation that the accused party after taking away the gun had fired the second shot. This argument, even otherwise, would not be available to the prosecution, for the reason, that in that case the accused party would not have thrown the first empty on the spot. Moreover, the gun was found broken. The two empties of 7-MM rifle have also wedded with the licensed rifle of Muhammad Yousaf complainant No empties of pistol were found on the spot. The pistol with which the appellant was alleged to have fired, was also not recovered. The P.Ws at the trial have stated that Ghazi Khan was armed with a .12 bore pistol. This fact was not mentioned in the F.I.R. and it was a clear improvement. No doubt the superior Courts some times have granted concession to the villagers in this respect, but such a concession cannot be pressed in this case because the parties in this case were quite well versed regarding the kind of weapons. The P.Ws had licensed weapons of different kinds. It is thus obvious that the improvement made by the -P.Ws regarding kind of pistol was intentional,

13. The occurrence had started in the premises of hotel. Even if it be granted that there were no customers, at least the owner of the hotel and someone of his employees must be there. They could have given an independent version of the occurrence but unfortunately neither anyone of them has been examined nor even named as a witness. The position that, thus emerges, is, that independent and natural witnesses who were available have not been produced, the ocular account has been given by P.Ws who are related inter se, interested and on inimical terms with the appellant and his family since 20 years. The complainant himself was facing trial for attempted murder in the cross-case registered at the instance of Ghazi Khan appellant. The corroboration required for such an ocular account is not forthcoming from any other evidence. In the circumstances, no safe reliance can be placed on the evidence of these witnesses. We have not considered the truthfulness or otherwise of the version putforth by the appellant as we have not believed the eye-witnesses regarding the manner in which the occurrence might actually have taken place, for the reason that truthfulness or fallacity of the plea taken by the appellant cannot lend any support to the prosecution case. The prosecution has not been able to prove its case beyond reasonable shadow of doubt. We, therefore; acquit the appellant by way of grant of benefit of doubt.

14. Since we have acquitted the appellant, the appeal filed by the State for enhancement of his sentence stands dismissed. S. G. D. Order accordingly.