The five appellants in this case were tried under sections 148 and 307, read with section 149 of the Pakistan Penal Code and were convicted as under :-- Muhammad Nawaz and Two years' R. I.under section 148, Wazir Muhammad. P. P. C. and four years'
R. I. under section 307/149, P. P. C. each.
Amir Muhammad and Two years' R. I. under section 148, Mushtaq Ahmad. P. P. C. and three years' R.
1. under section 307/149, P. P. C. each.
Muhammad Aslam. Six months' R. I. under section 148, P. P. C. and one year's R. I. under section 307/149, P. P. C, All the appellants were also sentenced to a fine of Rs. 300 each and in default of payment thereof they were to undergo a further period of six months' R. I.
The sentences of imprisonment were ordered to run con secutively.
2. The evidence is that on 31st of March 1968, at abaut degarwela in village Naru in the District of Mianwali, the appel lants after having formed an unlawful assembly while armed with fire-arms, made a murderous assault on Muhammad Nawaz (P. W. 7). The motive for the crime was that a brother of Muhammad Nawaz appellant had been done to death one year before the occurrence and the relatives of Muhammad Nawaz, the injured person, were named as accused persons. It was the suspicion of Muhammad Nawaz appellant that his Injured name-sake was also involved in the commission of the offence. At the time of the occurrence Muhammad Nawaz had gone to answer the call of nature when the appellants rose from the bushes. Muhammad Nawaz and Aslam appellants were armed with rifles while the other appellants were armed with .12 bore guns.
Muhammad Nawaz appellant raised a JaIkara when he saw his name-sake and said that he had come to avenge the murder of his brother Habibullah. He fired a shot from his rifle which hit Muhammad Nawaz P. W. on his nose and face. Wazir Muhammad appellant then fired a shot from his gun which hit Muhammad Nawaz P. W. on his neck. The other three appellants also fired ineffectively at Muhammad Nawaz. The occurrence was seen by Muhammad Yusaf (P. W. 6) a brother of the injured person, Mehar Khan (P. W. 8) the father-in-law of a cousin of the injured person and Ghulam Muhammad (P. W. 9) whose father is the tenant of Mehar Khan P. W. *
3. The case was originally registered in Police Station Saddar, Mianwali but it having transpired that the place of occurrence fell within the jurisdiction of Police Station Mochh, the F. I. R. lodged in Police Station, Mianwali as Exh. P. A. was treated as an F. I. R. by the S. H. O. Mochh and was exhibited as Exh. P. A./l. The police during the enquiry twice found that Wazir Muhammad and Mushtaq were the real culprits and that the three other appellants, namely, Muhammad Nawaz, Amir Muhammad and Muhammad Aslam were innocent. A statement to this effect was made both by A. S. I. Dost Muhammad (P. W. 11) and S. I. Sikandar Khan (P. W. 12) S. H. O. Police Station Mochh. No reasons, however, appear in their cross-examination for this opinion. The learned Magistrate who was cognizant of the case, summoned the three above-named accused persons with the result that all the accused were convicted by his successor.
4. There were two injuries on the person of Muhammad Nawaz and the doctor did not exclude the possibility of these injuries having been caused by one shot.
5. The main ground urged by the learned counsel for the appellants is that the conviction is based on the ocular testimony of inimical witnesses and cannot, therefore, be sustained. There is no denying that Muhammad Nawaz appellant suspected that Muhammad Nawaz P. W. was also privy to the murder of his brother. He had a motive to attack Muhammad Nawaz and his brother but that in itself is not enough to uphold a conviction which is based on inimical testimony. Ghulam Muhammad P. W.'s father is a tenant of Mehar Khan P. W. A reading of his evidence clearly suggests that he could not have been present at the spot. Mehar Khan stated that Ghulam Muhammad had no land of his own whereas Ghulam Muhammad said that he had his land at a distance of one and a half miles from the place of occurrence. His presence is, therefore, entirely doubtful. The case of the prosecution is that all the appellants had fired although the shots fired by Muhammad Nawaz and Wazir Muhammad had proved effective. It is in evidence that each one of the appellants fired five shots but no empties were recovered from the spot. The complicity of some of the appellants is at least doubtful and the part ascribed to the appellants that they fired five shots each is not supported by any circumstantial evidence. The effective shots are said to have been fired by Muhammad Nawaz and Wazir Muhammad. The doctor said 4 that these injuries could be caused by one shot. It is not possible to determine on this evidence as to which of the two appellants, namely, Muhammad Nawaz and Wazir Muhammad could have been responsible for these injuries.
It is also undeniable that the prosecution witnesses had a strong motive to implicate Muhammad Nawaz appellant in this affair, as their relatives were being tried for the murder of his brother.
6. I feel that the prosecution had spread their net wider than they should have. The P. Ws. had also motive to involve Muhammad Nawaz against whom there is no corroborative evidence. The plea of the learned counsel for the appellants that their conviction is based on inimical testimony and that it required corroboration, therefore, prevails. The medical opinion does not clearly show that two shots were fired. The part attributed to the other appellants has not been corroborated by any circumstantial evidence. I, therefore, give to the appellants benefit of doubt and set aside their conviction and sentences on both the counts. They shall be set free unless they are required to be