1. ' Abdus Sattar, Matta, Mumtaz, Nawaz, Hayat, Abdul Majid, Ghulam Hussain and Musa were tried on the charge of forming unlawful assembly ; murder of Muhammad Zaman and attempt to murder Sultan, Abdullah and Muhammad Khan. The trial Judge, by judgment, dated 14th October, 1979, convicted Mumtaz under sections 302 and 307, P. P. C. And sentenced him to imprisonment for life and a fine of Rs, 3,000 or, in default 3 months' R. I. And two years' R. I. And a fine of Rs, 1,000 or, in default 3 months' R. I.. Respectively, and Nawaz and Hayat under section 307, P. P. C. They were sentenced to two years R. I, each and a fine of Rs, 1,000 each ; or, in default three months' R. I. The remaining accused were acquitted.
2. ' The convicts have appealed to this Court. The complainants has filed a Revision (Criminal Revision No, 31/1980) against the acquitted and convicted accused with the prayer that all the accused be sentenced to death or any other order which is just and proper. This judgment shall dispose of both the matters.
3. ' The occurrence in which all the accused were alleged to have been involved and challaned took place on 13th October, 1976 at about 10 a. m., within the area of Village Daggaryar Shah.
4. Muhammad Ramzan lodged report (Exh. P. K.) at Police Station, Darya Khan on the same day at 1- 30 p. m. It was recorded by A. S.-I. Sultan Sikandar.
5. ' Muhammad Ramzan, Sultan, Ramzan son of Siddiq and Muhammad Khan were sowing grams in the field. Abdullah was removing the herbs. Muhammad Zaman was sitting nearby. He was giving them seed. All of a sudden, Abdul Sattar, Mumtaz, Nawaz. Hayat and Abdul Majid armed with rifles.
6. Matta, Hussain and Musa with .12-bore shot-guns appeared. Abdul Sattar challenged the complainant party. All the accused fired with their respective weapons. None was hurt. Muhammad Zaman got up. He took shelter behind a bush. Mumtaz and Majid accused stepped forward upto about 12 Karams. Both fired with their weapons. Their shots hit Zaman. Then all the accused fired and left the place of occurrence. Muhammad Zaman fell down and died.
7. ' The occurrence was seen by Muhammad Ramzan, Sultan, Abdullah, Muhammad Khan and Muhammad Ramzan son of Siddiq.
8. ' According to the first informant, the motive for this incident was that three years prior to the occurrence, he and his brother Zaman used to cultivate the land of Hakim Dost Muhammad Khan on tenancy basis. The accused claimed that the said land belonged to them.
9. ' In addition to Muhammad Ramzan, Sultan son of Zaman deceased and Muhammad Khan were examined as eye-witnesses. The other evidence consists of the recovery of rifles P.
7. P. 8, P. 10, P. 11, gun P. 9 and pistol P. 12 as well as the post-mortem report of the deceased.
10. ' The appellants denied the allegations. They gave their own version. That shall be referred to later on.
11. ' Muhammad Ramzan's evidence has been referred to above. The only other thrag to be mentioned in this sequence is that in examination-inchief before the trial Court he admitted that while lodging report (Exh. P. K.) he omitted the name of Abdul Majid accused inadvertently and thus made a supplementary statement after completion of the report.
12. ' Sultan was present in the field. He was helping Ramzan and others in sowing grams. Abdullah was weeding the bushes. Zaman was sitting nearby. He was giving the seed. The accused party turned up. Musa, Ghulam Hussain and Matta had .12-bore guns while Sattar, Mumtaz. Nawaz. Hayat and Majid were armed with rifles. All the accused fired towards the complainant party. Nobody was hit.
13. Sultan's father Zaman tried to take shelter behind the bush when Mumtaz and Majid fired at him. He was hit. He fell down. The accused fled away. When Sultan and others went near Zaman, they found him dead.
14. ' Muhammad Khan supported Muhammad Rainzan and Sultan. According to him first 2f all, all the accused who were armed with rifles and guns fired. Nobody was hit. Then Zaman took refuge behind the bush. Majid and Mumtaz came nearer and fired at Zaman. He was hit. He fell down. The accused retreated while firing in the air. Zaman was found dead.
15. ' On 19th October, 1976, Abdul Majid was arrested. He was produced before the police by his father alongwith rifle P.
10. It was taken into possession vide memo. P. L. On 20th October, 1976, Ghulam Hussain, Musa and Muhammad Hayat were arrested and Mumtaz on 23rd October, 1976. On 28th October, 1976 Mumtaz got recovered rifle P. 7 from his residential house. It was taken into possession vide memo.
16. P. G. On the same day Muhammad Hayat led to the recovery of rifle P. 8 from his kotha. It was taken into possession vide memo. P. H. On the following day, rifle P. 11 was recovered at the instance of Muhammad Nawaz. It was taken into possession vide memo. P. M. On 4th November, 1976, recovery of gun was effected at the pointing out of Ghulam Hussain. It was made into a sealed parcel vide memo. P. J. On the same day Musa led to the recovery of pistol P. 12 from sugarcane field near his house. It was taken into possession vide memo. P. N.
17. ' On 14th October, 1976, Dr. Muhammad Sadiq conducted post-mortem examination on the dead body. He noticed three lacerated wounds. Two were entry wounds 1/3" radius skin deep on the front of lower part of neck and 2"x 1" x chest cavity on the back of right shoulder. It had fractured the shoulder blade and ribs Nos. 2 to 5 on the back and caused extensive damage to the lung. There was no tattooing, blackening or scortching. The third was x x skin deep on the back of right shoul- der 1" below injury No, 2.
18. ' In the opinion of the doctor the injuries were ante-mortem caused by fire-arm. Cause of death was shock and haemorrhage. The second injury was sufficient to cause death in the ordinary course of nature. The rest two were simple.
19. ' Before proceeding further, I would now like to mention the statements of the appellants. Mumtaz admitted that Nawaz and Hayat appellants and Matta acquitted accused are his brothers. Their version was that their father obtained a decree of the disputed land against the Pathans on whose instance Muhammad Zaman deceased intended to take possession forcibly and died. They pleaded not guilty and said that they had been roped in due to enmity. Hayat tendered copies of Khatuni Exh. D. F. Register Haqdaran Exh. D. G. And Mutation No, 84 Exii, D. H. In defence, ' Learned counsel appearing on behalf of the appellants took me through the evidence. He submitted that the eye-witnesses were interested. No reliance could be placed on their testimony.
20. The prosecution story appears to be unnatural that if eight persons were to fire simultaneously nobody was hit especially when they were sitting in the open.
21. ' It was next contended that the defence version seems to be more probable.
22. ' I have also heard learned counsel appearing for the complainant. The former supported the impugned judgment and the latter prayed for setting aside the acquittal and for enhahcement of the appellant's sentence.
23. After considering the submissions of the learned counsel for both sides and going through the evidence, I have come to the conclusion that this appeal must succeed. There are many reasons for that but the important ones are, first, it is unbelievable that if eight persons were to fire simultaneously nobody would be hit at all. Secondly, it is admitted by Muhammad Ramzan that when he lodged the report, inadvertently he l'forgot to mention the name of Majid. It is surprising enough that the part attributed to Majid was just the same as that of Mumtaz, yet he conveniently forgot to mention Majid's name. This casts serious doubt not only about the credibility of Muhammad Ramzan's testimony but also on the entire prosecution story. Thirdly, the prosecution indiscriminately chose to involve several persons. This shows their malicious intention.
24. ' It is significant to note that Muhammad Khan son of Yaigoob Khan admitted in his statement that when the incident took place, there were four ploughs attached to four camels. When the attack was opened, they took shelter behind the camels. Yet neither of them nor any of the animals was hit. The reason. Given for that by this witness was that the shots were fired high. The accused had aimed their weapons higher than the victim and even the camels and that is why they were not hit.
25. This demolishe the entire prosaution case. If the accused had gone with the intention to kill them they would not fire in such like manner. I am, therefore, of th view that the story of the defence appears to be more probable. This appeal is accordingly allowed. The appellants are acquitted.
26. They shall be set free, forthwith, if not required in any other case.
27. ' The revision filed by the complainant has no merit. It is dismissed in limine.