1. ' This appeal is directed against the Judgment, dated 29th April, 1979 of Additional Sessions Judge, Dadu whereby he convicted the appellants under sections 326/34 & 324/34, P. P. C, and sentenced each of them to suffer R. I. For three years and to pay a fine of Rs, 250 each or in default to undergo R. I. For six months more. They have further been directed to pay compensation of Rs, 250 each to the injured Sono failing which they have been ordered to suffer imprisonment of six months.
2. ' Briefly the facts of the prosecution case as disclosed in the F. I. R. Lodged by Samano are that on 17th October, 1972, he, Allah Ditto, Paryal, Sono and Imamuddin had gone to Dada. After finishing their work at the evening time they were on their way to their village. At about sunset time Allah Ditto and Sono offered evening prayers in the mosque at village Sial. After offering prayer they started going towards their village. When they reached near Haji Dosan Culvert there came Haji Hakim, Saleh and Muhammad Bux duly armed with single barrel guns while Haji Piaro had a Lathi.
3. Haji Hakim fired gunshots which hit Sono on his left hand and other parts of the body. The witnesses issued Hakals to the accused persons who fired two gunshots in the air and ran away. Samano after leaving the injured Sono and other witnesses at wardat went to Police Station, Dadu where he lodged F. I. R. Which was registered under section 307/34, P. P. C.
4. ' A. S. I. Ghulam Rasool visited the place of wardat in presence of mashirs Ghulam Muhammad and Din Muhammad. He recovered empty shell of *12 bore and a live cartridge from the place of incident and referred the injured Sono to Civil Hospital at Dadu for treatment and certificate. On 19th October, 1972 accused were arrested. Haji Hakim produced his licensed gun and four.Live cartridges of .12 bore. After completing the investigation the case against the present accused/appellants was challaned in the lower Court and later on the case was committed to the Court of Session for trial.
5. ' At the trial prosecution examined seven witnesses in support of the case. P. W. 1 Samano complainant, P. W. 2 Sono, eye-witness and injured P. W. 3 Allah Ditto, P. W. 5 Parial as eye-witness of the occarrence. P. W. 4 Dur Muhammad Exh. 10 produced mashirnama of arrest of appellants. He has also acted as a mashir of securing of licensed gun from accused Abdul Hakim. P. W. 6 Exh. 15 Ghulam Muhammad is a mashir of wardat from where empty and live cartridges were secured. P.
6. W. 7 Exh. 19 is Dr. Ashfaq who has produced the medical certificate on behalf of Dr. Radhomal who had left for India and could not be examined.
7. ' Appellants/accused in their statement before the trial Court have denied the allegation and pleaded not guilty. They have further stated that they have been involved due to enmity. No witness has been examined in defence.
8. ' P. W. Samano Exh. 5 has supported his First Information Report and stated that on returning from Dadu he and Allah Ditto went to offer evening prayer leaving Soho, Paryal and Imamdin at Haji Dosan Culvert, and after offering prayer they proceeded to their village when all of a sudden there was a "Hakal" from the front direction and saw four persons whom he identified to be Haji Hakim who fired gunshot and other accused Muhammad Bux. Haji Saleh who were armed with gun and also fired but no body received injuries. He has further stated that he left Sono to the Otak of Haji Bachal and went to P. S. Dadu where he lodged the report. P. W. 2 Sono, Allah Ditto P. W. 3, Paryal P.
9. W. 5 have supported the version given by complainant Samano and injured Sono to the extent that four appellants were found at the ivardat and Abdul Hakim fired gunshot which hit Sono. Medical Officer D. Ashfaq Exh. 11 has produced the injuries certificate issued by Dr. Radhomal who examined the injured and issued the certificate. The following injuries were found on the body of injured Sono :- "(1) Gunshot wound ln x 1" x 1 i" on lower -1" of left middle finger crushing the underlying bone and soft tissue. Distal 1 of the finger was attached with only tag of the skin.
(2) Lacerated wound (gunshot) 1" x 1" x skin deep on the back of left ring finger at its foot.
(3) 2 pellet Wounds of entrance 1" in diameter each it" apart from each other on lateral side of left gluteal region communicating with injury No, 4.
(4) 2 pellet wounds of exit I" in diameter each 1-i" apart from each other on medial side of glu teal region.
(5) Lacerated wounds (gunshot) 1" x i" x skin deep in-between injuries Nos. 3 and 4.
10. ' Ghulam Rasul A. S. I. Who investigated the case could not be examined at the trial as it appears from the statement of Assistant P. P. Of Dadu Exh. 21 that he is dead.
11. ' The case was originally registered under section 307/34, P. P. C. And charges for the same offences were framed against the accused but finally the learned Additional Sessions Judge, Dadu came to the conclusion that offence according to him falls under sections 326/34 and 324/34, P. P.
12. C.
13. ' The case of prosecution based upon the ocular testimony of complainant Samano, Sono injured.
14. Allah Ditto and Muhammad Paryal.
15. ' The gun and empty shell have not been sent to the ballistic, therefore, no such report is available on the record.
16. ' I have heard Mr. Mehar Hussain Mesawa learned counsel for the appellants and Mr. Rashid Tariq appearing on behalf of the State.
17. Mr. Mehar Hussain Mesawa contended that witnesses are interested and there is no corroboration to ocular testimony. He has argued that Doctor who examined the injured and police officer who investigated the case were also not been examined by the Prosecution, therefore, defence had no opportunity to cross-examine the important witnesses. He has also submitted that Haji Saleh.Muhammad Bux and Pario though armed with weapons have not caused injuries, therefore, there is exaggeration. He has invited my attention to cases reported in 1978 SCM R 49, 1969 SCM R 454, 1982 P Cr. L .1 1244 and P L I 1982 Cr. C. (Kar.) 315.
18. ' Mr. Rashid Tariq learned counsel appearing on behalf of State contended that witnesses have supported the case and Medical ex idence supports the version of eye-witnesses. He has supported the impugned Judgment and relied on the cases reported in 1977 P Cr. L J 1076, PLD 1977 SC 557 and PLD 1978 Kar. 112, PLD 1977 FC 77 and 190 SCMR 599.
19. ' 1 have gone through the evidence and case-law referred to by learned counsel. In the present case there is evidence of four eye-witnesses, Samano, Sono, Allah Ditto and Muhammad Paryal. It is admitted that P. W. Muhammad Paryal is cousin as well as Masat of complainant Samano whereas injured Sono and P. W. Allah Ditto are brothers inter se, undisputedly, the place of incident is near the village of Muhammad Hussain Siyal and it has also been stated by complainant Samano before trial Court that some persons came out from the respective places as hearing gunshot reports but none of them came near the injured. He had not stated in the lower Court that Abdul Hakim fired gunshot which hit Sono. He has stated before the committal Court that :- "We heard the challenge followed by a gunshot which hit Sono and he fell down on the ground.
20. There were 3 gunshots in all. We saw Haji Hakim, Piaro, Saleh and Muhammad Bux who had fired."
21. ' According to F. I. R. Abdul Hakim fired which hit Sono and accused Piaro had lathi but in lower Court he has deposed that all the four accused fired. P. W. Allah Ditto Exh. 9, who is brother of Sono has admitted that there are about 200 houses in village Siyal and persons on hearing reports came out. He had informed Lal Muhammad of village about the incident.
22. ' P W. Muhammad Pafial Exh. 14 who is cousin of complainant Samano has stated that they informed Lal Muhammad and Ghulam Muhammad about the incident at the Otak of Bachal. He has admitted that cases between Samano and the accused persons were pending before the incident P. W. Ghulam Muhammad Exh. 15 who is mashir of wardat. He has admitted that wardat is at the distance of 100 paces from his village which consists of 150 houses. Gun and empty shell were not sent to Ballistic. The blood was not found from wardat. Under these circumstances the evidence of recovery of licensed gun from appellant/accused Abdul Hakim cannot be considered as corroboration to the evidence of eye-witnesses. Moreover learned Additional Sessions Judge, has rightly observed that if accused intended to cause death of Sono there was no one to prevent them under the circumstances when three persons are stated to be armed with guns.
23. The presence of eye-witnesses Samano, Allah Ditto and Paryal, who are closely related to Sono at the time of incident also appears to be doubtful. The next circumstance that has persuaded me to disbelieve the prosecution version is the absence of any independent witness.The incident has occurred in broad daylight near the village Siyal where so many persons came from village and that injured was taken to Bachal's otak where Ghulam Muhammad and Lal Muhammad were informed about the incident but prosecution has not examined a single person from among those who were available. I am conscious of the fact that strangers are reluctant to give evidence in case involving other persons but that cannot be a rule and each case will have to be determined on its own facts. The D enmity is admitted between the parties as cases between Samano and appellants were pending before the present occurrence and in that case the evidence of the alleged eye-witnesses would require corroboration from an independent and unimpeachable source.
24. ' For the above reasons, I am of the view that the guilt of the four appellants has not been satisfactorily proved. They are entitled to the benefit of doubt. Accordingly I hold that they are not guilty of the offence with which they are charged. They are acquitted. The appellants are on bail.
25. Their bail bonds shall stand discharged.
26. Appeal accepted.