The two appellants, namely, Wali Mohammad son of Noor Ahmad and Rehman's son of Bahawal, both residents of Chak No. 651/G. B. P S Lundianwala were tried by a Magistrate, 1st Class with enhanced powers under section 30 of the Code of Criminal Procedure on a charge under section 307/34, P. P. C. Vide judgment dated 27th September, 1980 they were convicted and sentenced to five years, R. I. Each and a fine of Rs. 500 each or as the case may be in default of payment of fine to three months, R. I. Each. They have appealed.
2. The occurrence took place at about 11.30 p. m. On 26th May, 1979. Matter was reported to the police by Ghulam Mohammad (P. W' 2) on the following day at about 11.05 a. m. On his statement F.
I. R. (Exh. P. A.) was prepared by Head Constable Mohammad Rafique (P. W. 1). Before this occurrence the appellants had given beating to Heera, maternal-uncle of Ghulam Mohammad P.
W. In this regard, a case was registered against the appellants. Besides, Inayatan alias Sharifan, were of appellant Rehman's, was abducted by Ghulam Mohammad and she was living with him.
From reprisal of this it is alleged that the two appellants injured Shahbaz brother of Ghulam Mohammad P. W. Facts that Ghulam Mohammad P. W. Shahbaz injured P. W. And Nawaz (not examined) were sleeping on a platform in front of their haveli. Heera, their maternal-uncle, was also sleeping close by. They were awakened by barking of the dogs. Ashiq P. W. Had also reached there in the meanwhile. Ali of a sudden Wali Mohammad appellant armed with gun and appellant Rehman's armed with a stick appeared there. Wali Mohammad fired and the shot hit Shahbaz P. W.
In his abdomen. He fell down. All present proceeded to take care of Shahbaz anti the appellants made good their escape.
3. After the registration of the case, Javed Ali, S. I. (P. W. 6) entered upon the investigation. Ghulam Mohammad P. W. Produced before him blood-stained cut and other articles of bed etc. These were taken into possession vide memo. P. C. He recorded the statement Ad the witnesses. He arrested the appellants on 8July, 1979. He found the appellants innocent and released them under section 167 of the Code of Criminal Procedure (should have been under section 169, Cr. P. C.). The investigation was then transferred to Mirza Ahmad Ali A. S. I. The witness under the instructions finally submitted the challan on 21st October 1979.
4. Shahbaz P. W. Was medically examined by Dr. Khurshid Ahmad Khan, Medical Officer. Civil Hospital, Jaranwala (P. W. 6). He noticed two injuries; one fire-arm wound in the abdomen and the second an abra--sion on the arm. According to the F. I. R. Injury No. 2 is of attributed to any of the appellants.
5. Prosecution at the trial relied on the ocular evidence given by Shahbaz (P. W. 3), Ghulam Mohammad (P. W. 2) and Ashiq (P. W. 4), the motive and the medical evidence. Gun, allegedly, used by appellant Wali Mohammad was not recovered. Therefore, there is no incriminating recovery in the case.
6. Ghulam Mohammad P. W. Had, allegedly, abducted the were of appellant Wali Mohammad.
Appellants had given beating to Heera, maternal-uncle of Ghulam Mohammad P. W. Therefore, the motive lay with Heera and if the attack was due to the abduction of the were of Wali Mohammad, the appellants would have attacked Ghulam Mohammad P. W. Ghulam Mohammad, as alleged in the F. I. R. Was also sleeping on the same Tharra. I am, therefore, inclined to take the view that the appellants had no obvious motive to injure Shahbaz P. W.
7. This brings me to the ocular evidence. According to the case of the prosecution as stated in the F.
I. R. The complainant i.e. Ghulam Mohammad P. W. Shahbaz P. W. And their third brother Nawaz were sleeping in front of their haveli. Heera, their maternal-uncle, was also sleeping close by. A lantern was lit. Appellant Wali Mohammad fired while Rehman's appellant remained a passive spectator. In fact Wali Mohammad fired at all of them but only Shahbaz P. W. Was bit. At the trial the case of Ghulam Mohammad P. W. Is that only Shahbaz and Heera were sleeping outside the haveli. The witness (Ghulam Mohammad) came out of his house and saw the two appellants standing there. On receiving the shot, Shahbaz fell down. Witness raised lalkara and the assailants made good their escape. According to Shahbaz P. W. He, his maternal-uncle Heera and his brother Nawaz were sleeping. He were up on hearing the barking of the dogs and saw the two appellants.
Appel--lant Wali Mohammad fired at him and he fell down. He states that Ghulam Mohammad, inter alia, was in the house. His case is that on hearing the barking he stood up. He was standing when he was fired at. The assailants remained standing there for about 5/6 minutes and the other people reached there during this period. No blood fell on the ground as his brothers had lifted him and made him lie on the cot. Asghar brother of Ashiq P.W. Is litigating with Wali Mohammad regarding the appointment of Lambardar in the village. According to him also Shahbaz was standing when he was fired at. No blood fell on the ground as the injured was at once removed to the charpoi. According to him, the occurrence was over within 2/3 minutes. He states that Rehman's appellant did not participate and was standing silent.
It is, thus, obvious that ocular evidence is not only replete with contra--dictions and improbabilities but also is given by the witnesses who are interested and inimical towards the appellants. No one would believe the story that the blood did not fall on the ground because the injured was at once removed to the charpoi. I am, therefore, inclined to take the view that some unknown assailants fired at Shahbaz when he was sleeping on the cot. The story that all the three awoke up on account of the barking of the dogs seems to be an after thought. No one had seen the appellants. Delay in lodging the F I. R., above all, cannot be overlooked. For all these reasons, I accept the appeal andth set aside the conviction of both the appellants, and acquit them. They will be set at liberty forthwith if not required to be detained in any other case.