Suleman, son of Ahmad Bakhsh aged 3 years, his first cousin Ali Gohar, aged 25 years, son of Fateh Ali, his three nephews, namely, Hashim, Faiz Muhammad and Sadro, sons of Allan, and Arif, son of Walidad all Ghoto by caste and residents of village Munshi Ahmad, Taluka Ghotki, District Sukkur, were tried under sections 148 and 307/149, P. P. C. On the allegation that on 19-7-65 they constituted an unlawful assembly being armed with guns, hatchets and lathis, and in prosecution of the common object of the said assembly attempted at the life of Allahwarayo (P. W. 1), (hereinafter to be referred to as the complainant), and caused him gunshot injuries, a hatchet blow and lathi injuries. Accused Suleman and Faiz Muhammad were further charged for offence under section 13-D of the West Pakistan Arms Ordinance, 1965. Mr. Salim Abbas Jilani, Sessions Judge, Sukkur, by his order dated 24-9-66, found Suleman and Ali Gohar alone guilty of an offence under section 307/34, P. P. C. (Second Part), and sentenced them to ten years' R. I. Each and a fine of Rs. 500 or in default six months' further R. I. Each. Suleman, however, was acquitted of the offence under section 13-D of the Ordinance. The remaining four accused were given the benefit of doubt and acquitted of the offences. Faiz Muhammad was also acquitted of the offence under section 13- D of the Ordinance.
2. Suleman and Ali Gohar feeling aggrieved have come up in appeal against -their conviction, and sentences.
3. The prosecution story as narrated at the trial by the complainant and substantially supported by his brother Luqman (P. W. 2) and his relation Qasim (P. W. 3), briefly is that all the three had gone in the morning -for making some purchases to village Ghotki, which is at a distance of four miles from their village. On their return to the village when they reached the bridge of Feeder Wah at about sunset the, the six accused, who were lying in wait under the bridge, emerged from it. Of them Suleman and Faiz Muhammad were armed with guns. Ali Gohar and Arif were armed with hatchets, while the remaining to with lathis. Suleman challenged the complainant and fired a shot hitting him in the right elbow, at which he ran for his life, but was followed by Ali Gohar appellant, who gave him hatchet blow on the back, which felled him in the feeder canal. He then swam to a distance of about one mile up to the village of Allah Rakhio (P. W. 5) and apprised him of the occurrence. The complainant requested him to inform his father and brother, but after some the his brother Luqman and Qasim P. Ws. Also arrived. Both of whom informed his father, who brought a bullock cart in which the complainant was carried to the Police Station Ghotki, where he lodged the F. I. R. At 5 a.m. The following morning. In the F. I. R. The complainant gave substantially a different version of the gunshot injuries by stating that the first shot fired by Suleman went amiss and he was hit by the shot fired by Faiz Muhammad acquitted accused, as a result of which he received a pellet injury on the temple and shoulder. The complainant was examined by Dr. Abdul Jabbar Kazi on 20-7-65 at 8 a.m. And he found the following injuries on his person:-
(1) Longitudinal incised wound, 4--" x 1" x skin deep on back of abdomen over the right lumbar region.
(2) Transverse contusion 2" x 3/4" on back of chest, 3" below lower angle of left scapula.
(3) Inlet wound of a gun shot pellet 1/6" in diameter into mucus membrane deep on the right part of upper lip.
(4) Inlet wound of a gunshot pellet 1 /4" in diameter into skin deep on the back of left shoulder.
(5) Inlet wound of a gunshot pellet, 1/6" in diameter on the left temporal region, 2" above the left ear.
(6) Longitudinal abrasion, 2" x 3/4" on the back of right forearm, I below the right elbow.
All the injuries were simple in nature. According to the doctor, injury No. 1 appeared to have been caused by a sharp weapon like a hatchet, injury No. 2 by a blunt weapon like a lathi injuries 3, 4 and 5 by a discharge from a firearm at a distance of about 25 to 40 feet, and injury No. 6 by rubbing against a hard object.
4. The complainant stated that the motive for the offence was that Mst. Kundhani, sister of the three brothers, namely, Hasham, Faiz Muhammad and Sadro had developed criminal intimacy with him about a month and a half before the occurrence, and had eventually eloped with him, and that Faiz Muhammad had lodged a complaint against him, in consequence of which he was arrested, and the girl was restored to her parents.
5. Besides the to eye-witnesses, namely Luqman (P. W. 2) and Qasim (P. W. 3), who substantially confirmed the story of the complainant indicated above, Allahrakhio (P. W. 5) confirmed the statement of the complainant to the effect that he had gone to his house in injured condition and had charged the six accused for having waylaid and attempted at his life. Out of the six accused only Suleman and Ali Gohar had been named, while the other four accused had not been named.
6. The learned Sessions Judge, while dealing with the question whether the to eye-witnesses Luqman and Qasim were accompanying the deceased, recorded a categorical finding in the negative, holding that the to witnesses had not at all accompanied the complainant to Ghotki village, much less that they had done so for the purpose of making purchases. He then addressed himself to the testimony of the complainant and thought that the complainant's charge against the to appellants was corroborated by the testimony of Allahrakhio P. W. In that he had named the to appellants before him, though the number of the miscreants had been stated by him to be six, and that the evidence of the doctor in regard to the gun--shot injuries and the hatchet injury to the complainant was another Piece of corroborative evidence. He accordingly, as already stated, convicted and sentenced the to accused and gave the benefit of doubt to the other four accused.
6. Mr. Azizullah K. Shaikh, learned counsel for the appellant, strenuously argued that the conviction of the to appellants could not be sustained, in particular when the complainant as also the to eye- witnesses, namely, Luqman and Qasim, had been disbelieved in regard to the four of the six accused, and the further fact that the complainant had given substantially different version of the occurrence in regard to the part attributed to Suleman accused in the F. I. R. Wherein he had charged him for ineffective firing and Fail Muhammad, one of the acquitted accused for the effective shot while at the trial the complainant took a complete somersault and reversed the position by saying that Suleman fired the shot which hit him in the right elbow, and that Faiz Muhammad accused "fired another shot at me which however missed me". The learned counsel further argued that the evidence of Allahrakhio P. W. And that of the doctor stating that the complainant had received a gunshot injuries and hatchet injury could not be considered as corroborative evidence, and that at any rate, it will not be in consonance with the safe administration of dispensation of justice to rely on the testimony of the complainant who had been disbelieved in regard to four of the six accused and also on the point that he had falsely deposed about the to eye--witnesses having accompanied him and the further fact that the complainant had beer. Found to have scant regard for truth, saying one thing in the F. I. R. And taking different position at the trial.
7. On a careful review of' the evidence and after giving the arguments addressed my careful consideration, I addressed at the have formed the opinion that the case has not been brought home to the appellants beyond reasonable doubt and would not be consistent with safe administration of dispensation of justice to rely on the testimony of the complainant, who halo been discredited in regard to the complicity of four accused and who had been found to have proverbial disregard for truth. It appears that the complainant was returning late in the evening all alone when he was given hatchet blow by a person and when he was on the run, another person fired a shot from a distance and some of the pellets hit him, but in view of the fact that a few months earlier he had enticed away the sister of Faiz Muhammad and his to brother; (accused), he brought a very exaggerated charge swelling the number of the actual miscreants. Regard being had to the contradictory statements, it is not possible to rely on the, testimony of the complainant in regard to the to appellants, without independent corroboration, in particular when he has been disbelieved in respect of four acquitted accused and had has also tied about the presence of the to eye-witnesses. Iaccordingly accept the appeal set aside the conviction and' sentence of the appellants and acquit them. They are on bail and are discharged of their bail bonds.