1. ' Appellant abovenamed, being aggrieved by judgment, dated 5th June, 1979 of the learned Additional Sessions Judge, Dadu, in Sessions Case No, 168/77, by which appellant has been convicted under section 324, P. P. C. And sentenced to suffer R. I. For 18 months, has preferred the above appeal on the following facts and grounds.
2. ' Prosecution 'case in nutshell is that on the material day i. e. 1 1 th May, 1977 first informant Abdul Rehman, his brother injured Khanan, P. Ws. Ramzan and Adam were sitting in the Otaq of Wadero Sallan at village Haji Hashim, when at about 9-00 a. m. The present appellant driving a cycle passed by the Otaq. P. W. Sallan asked these witnesses to fetch Abdul Ghani to him, as he had received a complaint against him. Accordingly the witnesses followed Abdul Ghani and called him, but the latter went ahead. The witnesses approached him in the bed of abandoned wahur, which was without any water. They asked him to accompany them to Wadero Sallan, but he refused to go with them. When P. W. Khanan tried to catch hold of him, the appellant took out pistol and shot at Khan Muhammad, who received injuries and after raising a cry fell down. The appellant tried to re- load his pistol but the witnesses overpowered and apprehended him. They also snatched his pistol and a live cartridge. Khan Muhammad was bleeding from his injuries on the left leg, who as well as the appellant were taken to the Otaq of P. W. Sallan. On being informed about the occurrence Sallan advised the witnesses to lodge report with police and consequently first information report was lodged by Abdul Rehman at Bhan Police Station, the same day at 3-00 p. m. The appellant as well as the pistol and live cartridge secured from his possession were also produced before the police. It is admitted in the F. I. R. That while apprehending the appellant P. W. Raman had given minor lathi blows to the appellant.
3. ' A. S. I. P. Ali Murad recorded the report of this incident and after noting injuries on the person of Khanan referred him to Medical Officer Bhan, for treatment and certificate. He recorded the statement of injured Khanan as well as P. W. Ramzan, when the latter produced a lathi before him.
4. He also secured a country-made pistol of .12 bore, a live cartridge and an empty shell snatched from the possession of the appellant and prepared a memo. As Abdul Ghani had also injuries on his person, after being taken into custody he was also referred to Medical Officer Bhan-Saeedabad for treatment and certificate. On the next morning A. S. I. P. Visited the vardat and secured blood- stained earth. It is alleged, that P. W. Abdul Rehman produced the cycle belonging to the appellant, before the A.
5. 5.-I. P. Which was secured and a mashirnama was prepared. After recording the statement of P. W.
6. Sallan, A. S. I. P. Handed over the case papers to S. H.
0. Who on completion of investigation challaned the appellant in the lower Court.
7. ' At the trial appellant Abdul Mani pleaded not guilty to the cfrarge; while the prosecution examined Abdul Rehman P. W. 1, Dr. Bashir-Ahmed P. W. 2, Khanan P. W. 3, mashirs Haji P. W. 4, Adam P. W. 5, Muhammad Saleh alias Sallan P. W. 6, and A. S. I. P. Ali Murad P. W.
8. 7.
9. ' When examined under section 342, Cr. P. C. Appellant Abdul Ghani denied the allegations against him and disowned the pistol. According to him the pistol belonged to P. W. Abdul Rehman, while the injuries on his person were caused by Ramzan, Abdul Rehman and Adam. It is his case that the witnesses have deposed against him, at the instance of P. W. Sallan. He has clarified the position as under :- "Ahmed Khan brother of P. W. Sallan developed illicit relations with the wife of my caste-fellow Ibrahim Bughio, at village Khairo Dero. About 5-6 years back Ibrahim shifted to my village, where Ahmed Khan used to visit his wife. I had asked Ahmed Khan not to visit our village, when he got me implicated in this case."
10. ' No evidence in defence was however, led.
11. ' Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
12. ' Learned Advocate for the appellant in support of the above appeal submitted as under : -
(a) That all P. Ws. Are closely connected and interested and inimical to appellant and as such no reliance can be placed on their statements, without independent corroboration, which is not at all available in present case.
(b) That alleged recovery of pistol from the possession of appellant, in view of the statement of appellant under section 342, Cr. P. C. Throws doubt on prosecution version, in this connection and as such recovery of said pistol cannot be used as corroborative piece of evidence.
(c) That P. W. 1 Abdul Rahman is brother of injured, P. W. 3 Khanan (complainant injured) is man of Wadero Saleh, under whose orders, he went to arrest the appellant by force, P. W. 4 Bashir is nephew of complainant, P. W. 5 Adam is Hari of Wadero and nephew of complainant and P. W. 6 Wadero Saleh has enmity against the appellant and consequently it is P. W. 6, who has falsely involved the appellant in this case, as appellant refused to meet him, as admitted by P. Ws.
13. ' In support of above contentions, the learned counsel for appellant relied upon cases reported in 1973 P Cr. L J 535 and 1981 P Cr. L J 474/1171 and submitted that prosecution has failed to establish its case beyond reasonable doubt.
14. ' The learned Advocate appearing for the State on the other hand submitted, that he was- fully supporting the impugned judgment, as appellant was arrested on spot and pistol was recovered from his possession, specially as statement of appellant under section 342, Cr. P. C. Is afterthought.
15. 4 P. Ws. Have fully supported prosecution case.
16. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for appellant.
17. ' It is admitted position, that P. W. 6 Wadero Saleh had sent all other P. Ws. To bring appellant to his Otak, when appellant was passing on cycle from near his Otak. It is clear from the statements of P.
18. Ws. That appellant refused to go to Wadero and as such according to P. W. 5 Adam, P. W. 3 Khanan tried to catch hold of appellant, when it is alleged that he took out pistol and fired at Khanan. P. W. 1 Abdul Rahman in his crose-examination before the learned trial Court admitted, that P. W. Ramzan gave lathi blows to appellant but denied struggle for catching him. In the face of these facts on record, statement of appellant under section 342. Cr. P. C. Cannot be ignored, that he has been involved due to enmity and that pistol does not belong to him, but belongs to P. W. Abdul Rehman, the alleged mashir of recovery and that he was caused injuries by P. W. I Ramzan, Abdul Rehman and Adam in struggle for catching him. Cross-examination of P. W. 1 Abdul Rehman shows, that according to appellant, P. W. Abdul Rehman had fired the pistol in question at him, but the shot hit P. W. Khanan, before appellant was overpowered and taken to Otak of P. W.
6. It may be noted that independent witnesses Jhando, Suleman, Ibrahim and Abdullah, whose names are given by P. W. I, that they came from village on spot were not at all examined by prosecution to corroborate P. Ws. Even P. W. Ramzan, who according to P. W. 1 had caused lathi injuries to appellant, was not examined by prosecution and was given up. Keeping in view these facts on record in my opinion prosecution has failed to establish its case beyond reasonable doubt, against the appellant.
19. ' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above appeal.