1. ' Appellants above-named, being aggrieved by judgment, dated 19th December, 1977 of Assistant Sessions Judge, Nawabshah, in Sessions Case No, 577/75 by which appellants have been convicted under section 307/314, P.P.C. And appellant No,1 Nizamuddin has been sentenced to suffer R.I. For 5 years and the fine of Rs, 1,000 or in default to suffer further R.I. For one year and appellant Mitho and Kamal have been sentenced to suffer R.I. For 3 years each and to pay fine of Rs, 500 each or in default to suffer further R.I. For 6 months, have preferred the above appeal, on the following facts and grounds :-- ' On 20th December, 1976 at 5-00 a.m. Muhammad Amin lodged his report with Daur Police Station, that he has 51 Acres of lands in Deh 99 Nasrat in which Yar Muhammad, Allah Bux, and others are Haris. Accused Ali Mardan is his neighbouring Zamindar, who have Haris viz. Nizam, Mitho, Hakam Ali, Kamal Laghari, Amiro and Sain Bux. Two three days prior to the incident co-accused Ali Mardan, Nizam and others had exchanged hot words with P.W. Yar Muhammad and his brother Ahmad Nawaz on cattle trespass in fields of Kanger (grass). On the night of incident complainant and his Haris Yar Muhammad and Lal Muhammad were sitting in the house of complainant, it was about 8-30 p.m., complainant was called by outside the house. Complainant and Yar Muhammad went outside the house, while they were armed with Lathis and saw that each accused Nizam, armed with gun. Ali Mardan, Amiro, Sain Bux, Rind, Mitho, Kamal and Hakim Ali Legharis armed with Lathis were standing outside the house, co-accused Ali Mardan instigated the accused not to spare, as they are opposing the accused, hence the above accused/appellants attacked the complainant party and appellant Nizam directly fired on them, which was missed. On gun report P.W. Lal Muhammad also came out of the house and fight took place, complainant gave hatchet injuries on back of Mitho appellant, Nizam again fired at complainant and P.W. Yar Muhammad which hit right hand of P.W. Yar Muhammad and complainant gave Lathis blows on the gun of appellant Nizam, hence gun was fallen down and complainant embraced appellant Nizam and got him fell down. On gun reports and cries P.W. Allah Bux, Ahmad Nawaz, Punhal and Ibrahim came running.
2. Appellant as well as co-accused looking them ran away, except appellant Nizam whom they caught hold of alongwith gun and tied him. On enquiry, complainant narrated the facts to Allah Bux and others, who also saw the gunshot injuries on the hand of complainant and putting the above witnesses on the guard of appellant Nizam, complainant and Allah Bux went to their Nekmard Baloch Khan at Nawabshah and narrated him the facts. He accompanied them to their village and took injured, Yar Muhammad to police station for filing the report.
3. ' F.I.R. Was recorded by H.C. Muhammad Maroof, who investigated the case and finally appellants as well as co-accused were challaned by A.S.I. Muhammad Yousif in the Court of City Magistrate, who sent the case to the Court of Sesison, from where this case was received by the learned trial Court.
4. ' Appellants have not pleaded guilty to the charge, they have denied to have instigated or attacked on the complainant party or caused them gun injuries or other injuries as alleged by complainant party, by making an unlawful assembly. They have given their own defence theory. Co-accused Ali Mardan had professed his innocence, while admitting the motive that the appellants as well as co- accused had exchanged hot words on cattle trespass in their fields, and further stated, that appellant Kamal had filed F.I.R. Bearing No, 1 of 1975 S.P., as S.H.O. Had refused to record his F.I.R.
5. Alleging that complainant party has attacked appellants Nizam, Mitho and Kamal, while coming back from Buchari and further stated that he has enmity with P.W. Baloch Khan and one Ghulam Rasool Rind and on their investigation complainant had filed F.I.R. And gave his name falsely in order to save their skin from their F.I.R. Which was not considered by police. Appellant Nizamuddin had stated that he alongwith appellant Kamal and Mitho were coming back from Buchari in the evening when complainant's party attacked them and gave Lathi injuries, appellant Kama! And Mitho had gone and lodged report at Daur Police Station and on the next morning he was called by police and was arrested and involved in this case, and his further statement is same as of co- accused All Mardan. Appellant Mitho had added in his statement, that police had taken gun and its licence from his house and his further statement is same as of appellant Nizam and co-accused Ali Mardan, appellant Kamal had stated, that on 19th December, 1974 he alongwith appellants Nizam and Mitho were coming from Buchari, they were attacked by complainant party and appellant Nizam and Mitho received Lathi injuries, he took Mitho with him to Police Station Daur for lodging the report, but it was refused, then he made application to S.P. Nawabshah, who directed Police Station Daur, then his F.1.R. Was recorded but his case was not challaned. He produced copy of F.I.R. (i of which is missing). Accused Hakim Ali, Sain Bux and Amir Bux had professed their innocence stating that they were not present at the time of incident, and do not know anything and their names have been falsely given by the appellants as well as co-accused as they are men of other accused.
6. ' The learned trial Court taking into consideration the evidence adduced by the prosecution before it, convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo of appeal.
7. ' The learned Advocate for the appellants in support of the above appeal submitted as under :--
(a) That the prosecution evidence in respect of the present appellants is on all fours with that against the four acquitted accused, except in case of Nizamuddin against whom alleged recovery of gun and being caught on the spot are being made. In view of this at least appellants Mitho and Kamal's case cannot be distinguished from the cases of the four acquitted accused and as such they are entitled to acquittal, on the same grounds.
(b) As far as appellant Nizamuddin is concerned, the alleged arrest of this appellant on the spot as well as recovery of the gun from his possession is not free from doubt, as the Mashir of said arrest and recovery is an interested Mashir against whom the appellant Nizamuddin has alleged enmity and consequently no reliance ought to have been placed on such recovery, even in respect of appellant Nizamuddin. As far as the arrest of the appellant Nizamuddin is concerned the appellant has given different version of his arrest, which cannot be overlooked in view of the facts and circumstances of the present case and consequently reasonable doubt in respect of this aspect of the case against the appellant Nizamuddin has been created and the benefit of such doubt ought to have been given to appellant Nizamuddin.
(c) That complainant had only one injury whereas appellant Nizamuddin had four injuries on his person and further there was delay of 8 hours in lodging of the F.I.R. In question and as such the version given by appellant Nizamuddin is more plausible and ought to have been accepted by the learned trial Court.
(d) That the gun alleged to have been recovered from the appellant Nizamuddin has not been connected with the crime in question, as there is no Ballistic Expert Report to connect the gun with the crime in question.
(e) That the provisions of section 34 are not at all attracted in the present case, as there was a free fight, even according to the prosecution between the parties and as such each assailant would be responsible for his own overt act and this aspect has been completely ignored by the learned trial Court.
(f) That the appellant Nizamuddin as well as other appellants have alleged enmity. In view of this the evidence of the prosecution witnesses required independent corroboration, which is not at all available in the present case.
(g) That recoveries of alleged empties from the Vardat is doubtful, in view of the statements of the prosecution witnesses on record in this connection and consequently the scene of offence is also not established beyond reasonable doubt.
(h) That there is nothing on record to show, that any of the appellants had intention to kill the injured complainant and in view of the fact, that there is only one superfluous injury on the person of the injured, the provisions of section 307, P.P.C. Are not at all attracted and the offence, if any, committed by the appellants would fall under section 324, P.P.C. And since appellants have remained in custody for more than 2 months the said period may be considered sufficient in view of the facts and circumstances of the present case, in the alternative.
8. ' The learned Advocate for the State on the other hand submitted, that the fight between the parties is admitted in the F.I.R. And consequently each appellant will be responsible for his own overt act and, therefore, in the absence of any allegations of any act assigned to appellants Mitho and Kamal, he does not support the impugned judgment as far as the conviction of these two appellants are concerned. However, the learned Advocate for the State, submitted that prosecution has established its case against the appellant Nizam by evidence adduced before the learned trial Court. In his opinion, the case against the appellant Nizamuddin also would fall under section 324, P.P.C. And not under section 307. P.P.C. In view of the superfluous injury on non-vital part of the body of the complainant and consequently *his sentence may be reduced, keeping in view these facts.
9. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R L P of the learned trial Court as well as impugned judgment.
10. ' Prosecution case rests upon the statements of P.W. Muhammad Amin, who stated before the learned trial Court, that acquitted accused Ali Mardan was his neighbouring Zamindar and appellants Nizamuddin, Mitho and Kamal as well as acquitted accused Amiro, Sain Bux, and Hakimali are his Hans. Three days prior to incident appellant Nizam, Mitho and acquitted accused Hakamali and "Amir Bux had exchanged hot words with them over grazing of cattle and, thereafter, on the day of incident at 8-00 p.m., he was sitting with P.W. Yar Muhammad and Lal Muhammad, when somebody called from outside and consequently he and Yar Muhammad went outside the door and saw seven persons namely appellants and acquitted accused persons, armed with Lathis, except appellant Nizamuddin, who was armed with gun. It was moonlit night. Appellant Nizam fired at them, but missed and he again fired, which hit P.W. Yar Muhammad on the right hand and consequently he caught hold of appellant Nizamuddin and fell him down. He further stated, that he was armed with Lathi. He further stated, that they raised cries, on which P.W. Allah Bux, Punhal, Ibrahim and Ahmad Nawaz came. He further stated, that he received two Lathi blows, but could not say which of the assailants gave him Lathi blows. He further stated, that P.W. Lal Muhammad also gave hatchet blow to appellant Mitho and he gave blows to appellant Nizamuddin and arrested appellant Nizamuddin with gun. Thereafter, he stated that he went to his Nekmard, Baloch Khan at Nawabshah and narrated the facts, who came to Vardat and then went and filed F.I.R. Which he produced as Exh. 14 and handed over appellant Nizamuddin and gun to police, at police station. In his cross he admitted, that P.W. Yar Muhammad is resident of Deh. 99 N.Asrat, but had come to him for seed, from about one mile. He admitted P.W. Allah Bux as his Kamdar and stated he also lives at village Nizamani, which is one mile away from Vardat. He however denied, that they had arrested appellant Nizamuddin on previous day in fight and taken him to their village. He further admitted, P.W. Punhal resides 8/10 blocks away from them and P.W.
11. Ibrahim also resides 3 blocks away. He further stated, that P.W. Punhal had come to P.W. Ibrahim for bullocks. He admitted P.W. Punhal is his Masat, but P.W. Ibrahim is not related to him. He denied that he institued false case at the instance of Soomar Khan. He further confirmed, that he had not taken appellant Nizamuddin to police station, when he went to lodge F.I.R. With P.W. Yar Muhammad.
12. P.W.2 Yar Muhammad in his statement admitted, that he was Haris of P.W.1 complainant, so also P.Ws. Lal Muhammad and Allah Bux. He also admitted, that acquitted accused Ali Mardan was Zamindar and appellants and remaining acquitted accused were his Haris. He also admitted that complainant and Ali Mardan Zamindar, acquitted accused were on disputed terms, due to cattle trespass. Rest of his statement corroborates the statement of P.W.1, as far as alleged incident is concerned. In cross, he admitted that they had no torches but it was moonlit night.
13. ' P.W.3 Allah Bux in his statement admitted, that he is Hari of complainant P.W.1 and Kamdar. He stated that he was working in field to supply water at the time of incident, where one Nawaz had come to take water. He heard cries and gun report and as such he and P.W. Nawaz went running towards Vardat and saw appellant Nizamuddin was tied up and as such he inquired from P.W.1, who narrated to him the whole incident, as stated by P.W.1. He further admitted, that many other persons had gathered at Vardat. He further stated that he accompanied complainant to Nawabshah to inform their Nekmard Baloch Khan, who came with them to Vardat and took complainant to police station for lodging F.I.R. In his cross he stated, that P.W. Punhal and Ibrahim came after he reached Vardat. He also admitted no light or torches were in their hands, but moon was there.
14. ' P.W. Lal Muhammad after admitting that he was Hari, has corroborated statement of P.W. 1, except that he received any injuries, but admitted to have given Lathi blows to appellant Mitho in the incident.
15. ' P.W. 5 Baloch Khan has corroborated, that P.W.1 and P.W.3 Allah Bux came to him and narrated incident, and he accompanied them to Vardat and advised complainant to file F.I.R. He further admitted, that he was present when police came on Vardat and he acted as Mashir of arrest of appellant Nizamuddin vide Exh. 19 and of Vardat Exh. 20 and production of Lathi by P.W.1 Muhammad Amir Exh. 21 as well as Mashir of arrest of appellant Mitho vide Exh. 22, who produced licence of gun recovered from appellant Nizamuddin vide Exh.
23. In his cross he admitted, that complainant was his sister's son and Nawaz and Ghulam Haider other Mashirs are related to him. He admitted that 30 persons of different castes had collected at Vardat, when police reached Vardat. He further admitted that P.W. 1 and P.W.3 Allah Bux had told him, that they had caught hold of one thief, whereas others ran away. He further stated, that police told him that they had secured cartridges from Vardat, but he did not see them. He denied, that due to enmity he has falsely implicated appellants.
16. ' P.W.6 Dr. Fazal Muhammad had examined P.W.2 Yar Muhammad and appellant Nizamuddin and produced two certificates as Exhs. 25 and 32. He confirmed that P.W.2 Yar Muhammad had superfluous injury of gunshot and injury was simple. He also said that injuries on person of appellant Nizamuddin were also simple.
17. ' P.W. Bashir Ahmad is formal witness and identified signatures of H.C. Muhammad Maroof on F.I.R.
18. And Exh.
19. 30.
20. ' It may be noted 1.0. Was not examined before learned trial Court.
21. ' Appellants denied all allegations of prosecution and added that on account of enmity of P.W.
22. Baloch Khan with their Zamindar Ali Mardan, acquitted co-accused, they have been falsely involved and stated that they received injuries on 19th December, 19714 when they were attacked by complainants party, near Bucheri. Appellants produced copy of their F.I.R. As Exh.
23. 44.
24. ' It is clear from the statements of P.Ws. That they are all closely related and/or connected with each other and appellants have alleged enmity with complainants side and P.W. Baloch Khan, Nekmard of complainants side. Appellants Mitho and Nizamuddin have explained injuries on their person by producing F.I.R. Exh. 44, which is no doubt belated but explanation for delay is given in F.I.R. Itself, which is plausible. It may be noted, that P.W. Yar Muhammad had only one injury, whereas appellant Nizamuddin had four injuries on his person. F.I.R. Lodged by complainant speaks of free fight between parties at the time of alleged incident and as such question of common intention and/or common object between the appellants is not free from doubt and as such in my opinion each appellant could only be responsible for his own overt act, in the incident at the most.
25. ' It is significant to note, that according to P.W. Baloch Khan, there were 30 persons of different castes present, when police arrived at Vardat, but in spite of that, 1.0. Chose interested persons, as Mashirs of arrest of Nizamuddin and Mitho as well as for recovery of gun. Mashirnama of Vardat shows recovery of empties cartridges, but P.W. Baloch Khan stated, that he did not see them, but was told by police.
26. ' Keeping in view admitted enmity over cattle trespass and alleged enmity of acquitted accused Ali Mardan with Nekmard of complainants party P.W. Baloch Khan, it would be unsafe to rely on the statements of P. Ws. Without independent corroboration.
27. ' Gun alleged to have been recovered from appellant or Nizamuddin was not sent to Ballistic Expert and as such has not been connected with alleged crime in question. There was inordinate delay in lodging of F.I.R. Which has not been satisfactorily explained in my opinion. Counter-F.I.R. Was not taken by police, till it was forwarded by S.P. To police station. P.W. Yar Muhammad suffered only superfluous injury on his hand, while appellant Nizamuddin had four injuries. Evidence against present appellants is more or less same as against acquitted accused persons, except against appellant Nizamuddin, who it is alleged was caught on spot and gun alleged to have been recovered from him, which fact is denied by appellant Nizamuddin. Learned trial Court came to conclusion, that there was no sufficient moonlight at the time of incident. Learned trial Court acquitted four co-accused, as there was no corroborative evidence against them, as P.Ws. Were interested witnesses. As far as present appellants are concerned, learned trial Court has believed the P.Ws. On the basis of injuries on person of appellant Nizamuddin and counter-F.I.R. Exh. 44, which proves their alleged presence. Learned trial Court did not properly appreciate the contents of counter-F.I.R. And ignored the same as belated. I see no reason to agree with the conclusions and finding of the learned trial Court in respect of above appellants, in view of my own conclusions hereinbefore mentioned. In my opinion prosecution has failed to establish its case beyond reasonable doubt against present appellants as well.
28. ' Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit them by giving E them benefit of doubt and discharge the bail bonds executed by appellants in above appeal.