' SHAHID ANWAR BAJWA, J.---F.I.R No,31 of 2008 was recorded at Police Station, Kot Shahu on 13-12- 2000 at 1220 hours for an offence alleged to have occurred 13 hours earlier. Complainant stated that on the eventful night he and his family members were woken up by barking of dogs and they saw the present appellant along with four other persons inside their premises. Appellant was armed with a Kalashnikov and other co-accused persons were variously armed On giving hakle by the complainant, his brother and two cousins also woke up and all four of them raised cries of "thief, thief'. All the five trespassers fired from their respective weapons and the fire made by co- accused Mitho hit brother Warial Shah. Thereafter the accused persons ran away. Warial Shah expired at the spot. Consequently F.I.R. Was registered.
2. Charge, was framed on 23-11-2002 and amended on 25-2-2011 .And the amended charge is in the following words:-- "CHARGE ' That you on or about 12-12-2000 at about 11-00 p.m (night) hours along with absconing accused namely .1. Gul Bahar,
2. Sajjan and 3. Mitho all by caste Jatoi formed an unlawful assembly, being a member of an unlawful assembly armed with deadly weapons such as K. Kove, guns in house of complainant Dadan Shah, situated in Village Drigpur Taluka Khanpur and District Shikarpur, did in the prosecution namely the common object was to commit the theft of sheep of complainant from his Warra in the Hawaili in the house of complainant and thereby committed an offence punishable under section 148, P.P.C. And within my cognizance.
' And further I charge you that on the same date, time and place along with above said absconding accused committed lurking house trespass by night and did commit Qatl-e-amd of Warrial Shah the brother of complainant by causing him firearm injuries, while you attempted to commit the sheep of complainant from the courtyard house of complainant Dadan Shah and thereby committed an offence punishable under section 460, P.P.C. Read with section 302, 149, P.P.C. And within my cognizance."
3. At the trial P.W.1 was Dr. Nooruddin, P.W.2 was complainant Dadan Shah, P.W.3 was cousin of the complainant, Rakhial Shah, P.W.4 was Investigating Officer Saghir Hussain, P.W.5 was mashir Paryal Shah and P.W.6 was cousin of the complainant, Bhooral Shah. Thereafter statement of the appellant was recorded under section 342, Cr.P.C. And finally vide judgment dated 30-7-2011 the present appellant was convicted for an offence under section 460, P.P.C. And was ordered to - suffer life imprisonment and to pay fine of Rs,50,000 and for offence under section 302(b), P.P.C. To suffer imprisonment for life as Tazir and to pay compensation of Rs,2,00,000 to the heirs of the deceased.
4. It was claimed that during investigation the present appellant admitted and caused recovery of Kalashnikov and consequently F.T.R. No,3 of 2001 was recorded at PS. Kot Shahu on 24-1-2001. It was stated in the F.I.R. That the present appellant had agreed to produce crime weapon. So police party with him went near a jangle of Dargah Pir Sabzal Shah and the present appellant is alleged to have removed bushes with his hands and produced the Kalashnikov. This Kalashnikov was found to be without licence and consequently after trial vide judgment dated 30-7-2011 the present appellant was convicted for an offence under section 13(e) of the Arms Ordinance, 1965 and sentenced to suffer R.I. For 5 years and to pay fine of Rs, 50,000. In these two appeals both these judgments dated 30-7-2011 have been challenged.
5. Learned counsel for the appellant submitted that there is discordance between the ocular evidence and medical evidence. He next submitted that from the scene of the incident not a single empty has been recovered and therefore the incident is alleged did not take place. Lastly learned counsel submitted that the present appellant is alleged to have been armed with a Kalashnikov and it is not stated in the F.I.R. Or by any of the witnesses that present appellant injured any one or fired at the deceased. Regarding recovery of Kalashnikov at the instance of appellant learned counsel submitted that no private mashir was associated with the recovery. Though appellant was arrested on 14-1-2001. The weapon was foisted upon him because it took 10 days and on 24-1-2001 it is alleged to have been recovered from a place which has never been in possession of the appellant.
6. Learned State Counsel supported the impugned judgments and stated that the witnesses have clearly deposed and their depositions have remained unshaken and therefore the offence as alleged has been established.
7. We have considered the submissions made by the learned counsel and have also gone through the record.
8 Postmortem report reveals the injury to be as under:-- "(1) One gutter type lacerated wound measuring about 10 cm x 7 cm involving left eye ball, left zygomatic bone, making a hole in to the brain matter with fracture of left side of frontal bones zygomatic and lacrinal bone and orbital part of ethmoid bone, with inverted margins, Blackening and charring around the wound present and tattooing also + ye; (wound of entry)."
9. In the F.I.R. It is alleged that co-accused Mitho fired from his gun on deceased Warriyal Shah. The wound described is as gutter type lacerated wound measuring 10 cm x 7 cm having blackening and charring around the wound. This indicates two things firstly the wound is not a gun shot wound and secondly deceased was fired at from a .Very close range as there has been blackening and charring around the wound. F.I.R. States that co-accused Mitho fired at the deceased and Mitho is alleged to have been armed with a gun. Therefore, this aspect of the F.I.R. Cannot be believed.
Secondly the incident is such that there were four persons from the complainant side, though without their arms and there are five persons from the accused side though armed with deadly weapons. P.W.6 stated that they fired from 10 to 15 feet. There is no allegation that the parties grappled with each other and therefore it seems fair to assume that the accused maintained a good amount of distance between them and the complainant party. Medical evidence states that there was blackening and charring around the wound. Therefore, even on this score it could not be said that incident occurred as it has been alleged in the F.I.R. And by the witnesses.
10. From the scene of the occurrence blood-stained earth was recovered as has, been deposed by mashir Parryal Shah P.W.2, the complainant in his evidence stated that accused made 2/3 fires. He again stated that the accused made 10/15 fires. From the scene of the incident not a single empty has been recovered. Not only that, it is stated that the incident occurred inside an enclosure where about 15 sheeps were also being kept. Not only not even a single empty was recovered but also none of the fires hit the ground or any of the sheep. This creates doubt whether the incident as alleged had occurred.
11. The last piece of evidence against the appellant is recovery Kalashnikov. As stated above appellant was arrested on 14-1-2001 and the gun was recovered on 24-1-2001. Though I.O. Stated that he sent the gun to the Ballistic Expert but no such report of Ballistic Expert has been C produced. Inordinate delay in effecting the recovery creates a doubt in this regard also.
12. Result of the above discussion is that these appeals are allowed and the appellant is acquitted in both the cases by granting him benefit of doubt. He is ordered to be released forthwith if not required in any other case.