The appellant was convicted by the learned Additional Sessions Judge, Jacobabad for an offence under section 307, P. P. C. And sentenced to Undergo R. I. For 5 years and to pay fine of Rs. 1,000 or in default to undergo R. I. For 6 months and he was further convicted for an offences under section 13(D) of the Arms Act and sentenced to undergo R. I. For one year, ordering the sentences to run concurrently.
2. The incident had taken place at past mid-night occurring between the 4th and 5th August 1967 in the house of the complainant Khair Muhammad while the first report was lodged on 5th August 1967 at 6-30 a.m. At Karim Bux Police Station situated at a distance of 4 miles and it was recorded by Gul Bahar, H. C:
3. Mst. Inayat is wife of the complainant while the appellant is son of his cousin. An allegation was made that about a week before this incident the appellant asked Mst. Inayat to have sexual intercourse with him but she refused whereupon she was threatened. Of this she made complaint to her husband. On the night between 4th and 5th of August 1967 while the complainant and his Wife were sleeping on separate cots in the house there was a gun shot at about past mid-night.
The complainant on hearing the gun shot got up and found the present appellant and one unknown person, the appellant was carrying a gun. The complainant further found that his wife had been hit by the gun shot. The appellant and his companion ran away after issuing threats. The gun shot attracted Gulzar father of Mst. Inayat. He went running and found to persons running away. He identified the appellant. On entering in the house of Khair Muhammad he found his daughter with gun shot injuries and unconscious. The complainant told him that the appellant had fired at her. Some other-persons came and they were informed. The first report was lodged. The police resumed investigation. The woman was sent to the hospital. 'The appellant absconded, he was arrested by Muhammad Iran Khan, S. H. O. On 30th August 1967 near Railway Station, Jacobabad. Thereafter he was challaned. He proclaimed his innocence, and denied having absconded.
4. At the trial Abdul Karim, Mashir Mohammad Iran Khan, S. H. O. ; Gul Behar, H. C. ; Khair Mohammad, complainant; Mst: Inayat and Gulzar were examined; while the evidence of Dr. Abdul Ghani Shah recorded in the committal proceedings was brought on record.
5. There can be no doubt that Mst. Inayat was shot by gun and this is borne out by the medical evidence. She had to injuries caused by a gun shot on her left cheek. One of the injuries was the entrance wound while the other was exit wound. There was no charing and, therefore, the gun was fired from some distance.
6. As regards the identity of the appellant with the crime, three witnesses namely Kahir Mohammad, complainant; Mst. Inayat and Gulzar were examined. Mst. Inayat stated that she was sleeping when she hit by a gun shot and, therefore, could not identify the culprit. She also denied that the appellant at any the invited her to sexual intercourse or she had made complaint against him. Thus there remains to witnesses Khair Mohammad and Gulzar. Both of them implicated the appellant. Khair Mohammad was sleeping in the house at the the of the incident and he was woke up on the gun shot while Gulzar was sleeping in his own house and woke up on the gun shot and went to the wardat.
7. The learned Additional Sessions Judge accepted the evidence of these witnesses supported by the fact that the appellant had absconded as he was arrested after about 25 days at Jacobabad Railway Station by Mohammad Iran Khan, S. H. O. Who was examined and supported the factum of arrest.
8. The learned counsel for the appellant urged before me that the evidence of the complainant as well as Gulzar suffered from serious infirmities and therefore could not be relied upon. He further urged that in fact the culprit could not have been identified as admittedly it was a dark night and he was implicated on account of suspicions. I find considerable force in this, Contention. It has not only been admitted that the night was dark but I have also referred to the diary and it is found that it was the 26th of Lunar month consequently there would .Be no moon and no visibility. It. Is true that the appellant was know to the complainant as they were closely related but a single show was fired from some distance and before the complainant got up and gathered himself the culprits must have taken to their heels. They could not be expected to stay there it be identified. This is supported by the statement of the complainant trade in-the cross--examination. He stated that he had seen the assailants running away and the appellant was at a distance of 10 of 15 paces from him when he identified him. I am doubtful if in the circumstances of the present situation the identification could be possible. Not only this but in the committal proceedings he had stated that he had identified the appellant on the modulation of his voice. In this connection the learned Additional Sessions Judge was at pains to point out that the parties being close relations the complainant made efforts to save the appellant. According to him there was no occasion for the appellant to speak before the firing. Indeed the culprits could not have uttered any word before the shot was actually fired nor this allegation was made by the complainant, but the learned Sessions Judge ignored the admission of the complainant which is to the effect that when he tried to advance towards the appellant he issued threats. Thus there is no inconsistency with the admission made by the complainant in the committal proceedings that he identified the appellant on the modulation of his voice: Moreover, if a witness makes false concession and compromises his integrity his veracity is badly damages. If he makes false statement at one stage he is equally capable of making false statement at another stage.
9. The evidence of Gulzar deserves no better treatment. He was sleeping in another house and woke. Up by the gun report. He to had seen the assailants running away at a distance of 20 paces from him. He did not pursue them. In a dark night c the identification from such a distance is rather doubtful, it is, therefore, not possible to place reliance upon the evidence of this witness.
10. The only other circumstance available against the appellant is that he had absconded after committing the offence. Of course the explanation given by the appellant is not true but this circumstance by itself is not enough to hold him guilty of an offence, nor it can serve to provide corroboration to the evidence of the complainant and Gulzar which have been found to be incredible. Moreover, it is not unusual that when a person has been named as culprit he absconds.
Admittedly several other persons who were residing in the village were attracted by the gun report but none of them was examined.
11. In the circumstances I am inclined to give benefit of doubt to the appellant, I, therefore, allow the appeal and set aside the conviction and sentence passed against the appellant and I, acquit. He is on bail and his bail bonds are discharged.