' This judgment will dispose of Cr. Appeals Nos. 817/76 and 1058/76. The former is filed by appellants Beerbal and Gullu sons of Falak Sher and Mst. Saiyyo who were also tried by the learned Additional Sessions Judge, Faisalabad for the murder of Alam Sher. He convicted both the appellants under section 302/34, P. P. C. And sentenced them to life imprisonment with a fine of Rs, 2,000 each or in default of payment of fine to undergo one year R. I. Each. He further ordered that the fine, if realized, shall be paid to the heirs of the deceased. Falak Sher and Mst. Saiyyo were acquitted by him vide his judgment dated 23rd June 1976. The latter is filed by Beerbal alone who was convicted under section 13 of the West Pakistan Arms Ordinance, 1965 and sentenced to one year rigorous imprisonment. It was, however, directed that the sentences in this case shall run concurrently with one awarded to him under section 302/34, P. P. C.
2. On 10th October, 1974 at about 5 p.m. The first informant Lal (P. W. 7) along with his sons Gullan (P.
W. 8), Alam Sher deceased and Mst. Sahban, his wife, were bringing their cattle from Chak No, 724 G. B. To their house in Chak No, 513 G. B. When they reached between Daryamal Railway Station and Chak No, 513 G. B., the appellants attacked them. Beerbal was armed with a gun and Gullu had a hatchet while their- father Falak Sher and mother Mst. Saiyyo were empty-handed. Falak Sher challenged that they are going to take the revenge of death of his son Iqbal who was murdered by Alam Sher. Beerbal fired at Alam Sher which hit him on the right ear causing a big wound on the head and the pellets passed through the back side of the head. Alam Sher fell down on the ground.
Thereupon Gullu gave a hatchet blow on his back. The statement of Lal (Exh. P. A.) was recorded by Wazir Muhammad, S. I. (P. W. 9) at 7.30 p.m. The same day at Chak No, 724 G. B., who met him there when he was proceeding to Police Station, Kamalia for lodging the F. I. R. Formal F. I. R. (Exh. PA/1) was drawn by Muhammad Salim, Muharrir Head Constable (P. W. 1) at 8.15 p.m. The same day at Police Station, Kamalia,
3. The motive given by Lal (P. W. 7) is that four years before the occurrence his son Alam Sher and Saldir were involved in the murder case of Iqbal in which Saldir was sentenced to ten years' R. I.
While Alam Sher was acquitted by the learned Sessions Judge. Mst. Sahban had not been produced at the trial. Only the father and son Lal and Gullan (P. W. 7 and P. W.
8.) respectively appeared in support of the prosecution case.
4. On 12th October, 1974, a 12 bore gun (P. 3) was recovered from Beerbal appellant which was taken into possession by Wazir Muhammad, S. I. (P. W. 9) vide memo Exh. P. D./1. The memo was attested by Mopal whose wife is a sister of Lal (P. W. 7) and Lal's sister is married to him. He was not produced at the trial. Another witness of this recovery, Allah Yar (P. W. 5) appeared, his sister was married to Alam Sher deceased. On the same day blood-stained hatchet (P. 4) was taken into possession by the same S. I, vide memo Exh. P. E. The recovery memo was attested by the same witnesses,
5. The reports of the Chemical Examiner (P. K.) and that of Serologist (P. L.) in regard to scrapings of hatchet show that it had the origin of human blood.
6. Dr. Ghulam Ahmed (P. W. 6) conducted post-mortem examination on the dead body of Alam Sher deceased on 11th October 1974 at 3.30 p.m. And found four injuries on his person. Two were incised wounds, one on the right side of head below the external auditory meatus starting from the neck of lower jaw reaching over the mastoid process and the other was on the back of neck. The third was an abrasion starting from the back of neck and was going over the back of left scapula.
Fourth was a contused wound scalp deep above the right eye-brow on forehead. He found 2 ozs.
Of digested food in his stomach. According to him, injury No, 1 was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to 3 were caused by a sharp-edged weapon while injury No, 4 was the result of a fire arm. All the injuries, except injury No, 1, were found simple. At the trial the doctor was cross-examined. He deposed that possibility of injury No, 4 having been caused with hot iron sua cannot be excluded. He also opined that a wound caused with fire-arm which is within the radius of four feet shows signs charring and blackening.
7. Lal (P. W. 7) denied to have stated before the Committing Magistrate that due to dust, raised by the walking of the cattle, he could not see the four persons who attacked them. When confronted it was found so recorded. There are material discrepancies in the statements of the eye-witnesses regarding the incident and the number of injuries described before the Police, the Magistrate under section 164, Cr. P. C. And the Committing Magistrate. For the first time both the eye-witnesses and the Investigating Officer introduced rifle instead of .12 bore gun which was alleged to have been used by Beerbal, although the recovery memo Exh. P. 1 clearly shows that a .12 bore gun was recovered from Beerbal appellant.
8. The occurrence is alleged to have taken place in square No, 39 near about 12 other dahr is and no independent witness was produced. According to Lal (P. W. 7) Alam Sher deceased was fasting on that day but the medical evidence contradicts his statement, for, digested food was found in his stomatch. It was the month of Ramazan and the aftari time was round about 6 p.m. Wazir Muhammad, S. I. (P. W. 9) in his injury statement (Exh. P. H.) mentioned three injuries instead of four, found by the doctor. The prosecution has introduced rifle at the trial after receipt of the post- mortem examination report. If a '12 bore gun had been used then there would have been more pellet injuries on the face. According to the doctor, injury No, 4 caused by a fire-arm is simple and if rifle had been used, such an injury could not have been caused. Even for the recovery the Investigating Officer had not associated independent witnesses despite the fact that there are several Lambardars in the village of a large population, Obviously the appellants have been involved on account of suspicion and previous enmity. Since the recovery witnesses have not been relied, it is improper to convict the appellant No, 1 (Beerbal) under the Arms Ordinance.
9. For the foregoing reasons both the appeals are accepted. The convictions and sentences are set aside. They shall be released forthwith if they are not required in any other case.