1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the to brothers, one convicted under section 302, P.P.C. And sentenced to life imprisonment and the other convicted under section 326, P.P.C. And sentenced to ten years' R.I. "to examine the evidence in order to avoid any miscarriage of justice".
2. The appellants and the deceased Dost Muhammad had their houses opposite each other in a lane in village Jabbar Wala, Police Station Saddar, District Dera Ismail Khan. On the 27th of March, 1973 at about Deegarwela, there was a dispute between the deceased on one side and the to appellants on the other over the raising of the wall by Dost Muhammad, which wall the appellants thought was theirs and Dost Muhammad had nothing to do with it. The altercation in the lane attracted Shah Nawaz complainant (P.W.9) and his brother Bashir a lad aged about 9/10 years (P.W.10) from inside the house and Mehr Khan (P.W.11) and Mirza Khan (P.W.12) from the vicinity. They saw Gola appellant giving a blow to Dost Muhammad on his head with a Kahi with which he was already armed and immediately thereafter Nasrullah fired a shot at him killing him. Nasrullah wanted to fire another shot at Shah Nawaz and even threatened him but as the empty got stuck up in the barrel, he could not do so. He threw the gun outside and alongwith Gola entered his Kotha and bolted it from inside. The complainant side also bolted the door from outside so that the appellants may not escape from the room. Nevertheless, Gola was able to make an opening in the wall and tried to run away but was apprehended and brought to the spot. Rajab Ali Shah, S.H.O. Police Station Saddar was on patrol duty on Paharpur Road. Shah Nawaz met him and lodged the report about the occurrence which he recorded at 1830 hours and sent it for registration of the case at the police station. He reached the spot in about half an hour. He attended to the dead body of Dost Muhammad. He found Bashir (P.W.10) also injured. He recovered from the spot a country-made .12 bore gun in the chamber of which a freshly discharged empty was stuck up. He next went to the Kotha which was chained from outside as well as from inside. He opened the door and recovered the appellant Nasrullah. The appellant Nasrullah also made a report, a counter-version of the occurrence on which another case was registered. He also found a hole in the Kotha from which Gola appellant allegedly escaped.
3. In the case registered on the report of the appellant Nasrullah the said police officer recovered a Kahi of Shah Nawaz and a Danda of the deceased allegedly used for causing injuries to the appellant.
4. Dr. Muhammad Saleem Javed (P.W.1) on external examination of the dead body of Dost Muhammad found the following injuries:- "(1) One wound of entry 1" x 1" round alongwith three small holes -- x --If" round on the left of wound (of entry 1" x 1" already mentioned) just in the middle of the chest on front slightly to the left of mid- line with charring all round it.
(2) Two wounds of exit on the back of left shoulder blade each -- ---.
(3) One wound incised 1" x -- ", 2" above and to the right of left ear on the scalp."
5. Dr. Jahanzeb Khan examined Bashir (P.W.10) and found the following injuries on his person:- "One small lacerated wound on the middle of the right eye brew -- x -- in size. Right upper eye lid was swollen and right eye was congested. Duration of injury was 10 to 20 hours, and was kept under observation."
6. The same doctor examined Nasrullah appellant and reported the following injuries:- "(1) One vertical incised wound in the middle of the forehead extending down to the bridge of the nose, 1 --" x -- " skin deep.
(2) One abrasion on the outer angle of left eyebrow, 1 -- " x --" in size.
(3) One anterio posterior lacerated wound on the left half of skull 5" above the left eyebrow 1 -- " -- " x scalp deep.
(4) One transverse lacerated wound on the right half of skull 1 --" x --" x scalp deep.
(5) One small abrasion on the outer side of left elbow 1 --" x --" size."
7. The appellant Nasrullah explained the occurrence in the following manner "I am innocent and falsely charged. The spot where the disputed wall was standing was lying in front of our house. It was claimed to be ours and the deceased was also trying to claim this which is used as a dung hill in the village. In order to take forcible possession he put a layer over a very old dilapidated wall since our forefathers. I protested and this led to an altercation in the street and mutual abuses. In the meanwhile the deceased brother, Shah Nawaz also came out of his house, carrying a Kahi in his hand. Deceased was having a Danda in his hand and he gave me blow on my head. I retaliated with a Kahi which caused him a small injury. At this Shah Nawaz gave me a Kahi blow on my head which fell on my body and as 1 was alone I thought it safe to run away to my house but the deceased and his brother chased me. They tried to enter my Kotha and though I warned them they just were stepping into my door when I fired at them from a close range to save myself from the grievous injury and fear of death. The shot hit the deceased and he immediately turned back and ran to his house but fell in the street. I closed the door out of fear. After some the I heard noise of people, gathering in the street. As the Lambardar of the village Shadi Khan is a close relation of the deceased party I first thought of escaping by making a hole but I could not succeed because of villagers who were guarding me on every side. I did stay till the arrival of the police when I handed over the shotgun to him who took me out of the Kotha. Besides the Investigating Officer is under the influence of Bashir Khan, Lambardar of village Ghulaman Wala who also is related to the deceased party and the whole case has been fabricated against me in collusion with the police."
8. Gola denied all the allegations and had no counter version to put forward.
9. The trial Court held the appellant Nasrullah guilty of firing and killing Dost Muhammad and Gola of giving Kahi blow in furtherance of their common intention to cause his death. Nasrullah was sentenced to death and Gola was sentenced to life imprisonment.
10. The High Court while seized of the question of confirmation of death sentence of Nasrullah and a joint appeal filed by both of them re-examined the entire evidence. The common intention was found to be absent. The injuries on Nasrullah appellant were noted and it was held that these were simple "and the possibility is very much there that those were inflicted after that he had fired from the shotgun and put Dost Muhammad deceased to death, These injuries were facilitated when Nasrullah was not successful in loading the gun again and had to throw the gun at the spot and run away for shelter alongwith Gola to the latter's Kotha. In the absence of previous enmity we consider the action of Nasrullah to be hasty and certainly not due to any preconcert with Gola Nasrullah was held guilty under section 302, P.P.C. For the murder of Dost Muhammad and he was sentenced to life imprisonment and a fine of Rs.5,000 which was made payable as compensation to the heirs of the deceased. Gola was convicted under section 326, P.P.C. And sentenced to 10 years' R.I. And was required to pay a fine of Rs.1,000.
11. In the absence of a counsel representing the appellants, we have examined the evidence with the assistance of learned Assistant Advocate-General. We find that none of the eye-witnesses has stated about the injuries caused to Nasrullah though these were noticed by the police officer immediately after the occurrence when he arrested Nasrullah from inside the Kotha. The conclusion of the High Court that these were caused after Nasrullah had fired at the deceased does not get any support or mention in the evidence on record. The fact that the appellant Nasrullah had a counter-version charging Shah Nawaz and the deceased of attack on him would further strengthen his case. It is also to be noted that if Nasrullah was already armed with a gun he could not have received such injuries from close quarters as in the process he would have used his gun and in any case it would have kept away others from approaching him. The Danda attributed to Nasrullah and the Kahi attributed to Shah Nawaz were in fact recovered by the police officer during investigation of the cross-case. The nature of the injury on the person of the deceased would also support the version of the appellant Nasrullah that when he was threatened from a very close range by Dost Muhammad he was able to get hold of the gun and fired at him from the front.
12. The suppression of the injuries of the appellant Nasrullah by all the eye-witnesses, his counter- version getting support from the recoveries of 'Kahi' and 'Danda' from complainant's house make the prosecution case of one-sided attack highly doubtful and lend credence to the plea of the appellants. Hence the appeal is accepted, the conviction and sentence of the appellants is set aside and they are acquitted. They shall be released forthwith unless their detention is required in some other case.