This appeal under section 410, Cr. P. C. Is directed against the judgment of learned Sessions Judge, Nawabsbah dated 21-2-1970, whereby he found appellant guilty of offences under section 307, P. P.
C. And also under section 13-D of the West Pakistan Arms Act and sentenced him to suffer R. I. For three years and a fine of Rs. 500 or in default of payment of fine six months' R, I. Under section 307, P. P. C. And one year's R. I. Under section 13-D of the Arms Act. The sentences to run concurrently.
2. The facts briefly are that the appellant is alleged to have fired at Mst. Rasheedan, his ex-wife with the fire-arm on 28-1-67 at about 12 noon near the watercourse of her house and thereafter ran away. The incident is said to have been witnessed by complainant Mst. Naziran Begum, mother of the injured, who filed the F. I. R. On the same day at about 13 hours at Police Station Doulatpur, as well as her daughter Mst. Hanifan, who was inside the house. It is stated in the F. I. R. By the complainant that at the time of incident, from a very short distance Barkat Ali Desi and Mohammad Hussain Desi who were coming also saw the incident and drove away the appellant while giving him hakals. The Injured is stated to have received pellet injuries through gunshot and in front of her body. The informant told one Ghulam Hussain, Member, about the incident. This man is a B. D. Member and nekmard of the village. The injured was later on taken to the hospital in a jeep, where she was treated by a doctor.
3. The prosecution case is based mainly on the statement of first informant Mst. Naziran, . W. 5, who is mother of the injured and ex-mother-in-law of the appellant, P. W. Mst. Rasheedan the injured, who is the ex-wife, P. W. 8, Muhammad Jailer Police Constable, who has since died, his lower Court statement was brought on record, P. W. Anwaruddin, Medical Officer and P. W. 9 Ghulam Hussain.
4. During the course of arguments it was submitted by Mr. Azizullah K. Shaikh, counsel for the appellant that that the record shows there is sufficient evidence to show that there is an exist--ing enmity between the appellant and the complainant party and the appellant has been falsely implicated due to enmity, in the circumstances cannot be ruled out. The existing enmity is borne out from the file and the statements of the complainant party. In the F.I.R. Mst. Naziran states that three years back his son-in-law Ghulam Hussain, the present appellant, had committed murder or her husband Mu4ammad Din and her son Muhammad Ismail, but he was acquitted from that case and that 7-8 months back appellant had divorced her daughter Mst. Rasheedan and there are mutual differences existing between them. She used to live with her children Mst. Rasheedan, Mst.
Hanifan, Mst. Majidan, Mst. Irshad Begum and son Shokat Ali, had 16 acres of land and a house for their living. The appellant was awaiting for an opportunity to commit her murder as well as her children but could not succeed. But today however, he tried to kill her daughter injured Mst.
Rasheedan, ex-wife of the appellant. In cross-examination this witness stated that she had filed a case of dacoity against the appellant but again he got himself acquitted and also that her daughter Mst. Majidan had filed a rape case against one Muhammad Ali and the complainant was witness in that case. This Muhammad Ali was married with the sister of the appellant but she again complained that Muhammad Ali was acquitted and that her daughter Mst. Hanifan was married to Sub-Inspector of Police Ghulam Akbar, after the present case. She denied however, that the case was set up against the appellant, with the assistance of Ghulam Akbar, her son-in-law, the Police Officer, due to enmity and this enmity between the appellant and the complainant party is admitted by P. W. Mst. Rasheedan, the injured in her statement as well. The appellant in his statement under section 342, Cr. P. C. States that this case was brought against him by the complainant party on account of enmity. The complainant's daughter is married with S. I. P.
Ghulam Akbar and the F. I. R. Has been lodged at their instance. The complainant had filed several cases against him in which he has been let off. He however, did not produce any witness in defence.
5. Apart from the existing enmity between the parties, which cannot be ignored, however, I find material inconsistencies in the statements of the prosecution witnesses, which raises doubt in my mind with regard to the involvement of the appellant in the incident and I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. The complainant in her F. I.
R. States that the incident was, apart from her and her daughters witnessed by Barkat Ali and Mohammad Hussain (both brothers of first informant's deceased husband) who arrived on the cries and saw the appellant running away, but the complainant is not supported by the statements of Barkat Ali and Muhammad Hussain, who have not been at all produced by the prosecution.
These two persons perhaps could be independent witnesses of the incident. She is again belied by the prosecution witness Ghulam Hussain to whom according to the complainant she had stated the incident. P. W. Ghulam Hussain in his cross-examination clearly stated that he was not informed by the first informant Mst. Naziran. P. W. Mst. Rasheedan the injured has made contradictory statement before the trial Court than the one she made before the Enquiry Magistrate. In the lower Court she did not state that he mother and sister saw the appellant running away but in the trial Court she insisted that she did not say that. She also states that Barkat and Hussain have witnessed the incident and that the entire village had come at the place of incident including one Dr. Ghulam Rasool, B. D. Member and others but incidentally none of the 'villagers including Dr. Ghulam Rasool were examined by the prosecution. She admits that she knew this Ghulam Akbar S. I. P., six months before the marriage of her sister Mst, l1anifan and be knew at the time of incident as well and he used to visit them and at the time of incident Ghulam Akbar was posted at Kazi Ahmed Police Station, District Nawabshah and he was brought to hospital to see her and after divorce the appellant committed dacoity and her mother complained against him and she also gave evidence against the appellant as a witness. Next in the lower Court this witness has stated that when she was urinating at a distance of 10 paces sway from the watercourse she saw the appellant coming from the east white before the trial Court she stated that she had not yet set down to urinate when the appellant fired at her. Not only this, in the Court below she stated that none else from the village had come on her cries or even on gunshot report while before the trial Court, as pointed out earlier, she has categorically stated that the entire village had come including one Dr. Ghulam Rasool B. D. Member on hearing the gunshot, and these contradictions which are material in my opinion, have been brought out on record during the cross-examination. I therefore, give no credence to the statement of this witness as well as her mother the first informant.
6. Now I come to the statement of Muhammad Jaffer (now dead) Head Constable. He states that on 3-2-67 he arrested the appellant in presence of Ghulam Hussain and Allah Bux and the appellants produced licensed gun and 5 cartridges and a bandoleer, which he secured but again this witness contradicts himself in his cross-examination that he had arrested the accused at Timor Bridge 12 miles away from the vardat on receiving spy information that the appellant was likely to run to Punjab. This witness is contradicted by P. W. Ghulam Hussain, who was made a mashir of vardat. He states that Boota father of the appellant had produced the gun before the police in his village. It may be noted that the Police Officer has stated as referred earlier that he had secured the gun himself. Further this P. W. Ghulam Hussain belies the statement of Police Officer Muhammad Jaffer and states that the appellant was arrested in his village on the said day and he signed the mashirnama without its contents being read over to him. With regard to the medical evidence one Dr. Anwaruddin, Medical Officer was examined. He states that at 5-00 a.m.
On 29-1-1967, injured Mst. Rasheedan was sent to him by Police Station Daulatpur for examination.
After examining he found one gun shot wound --' in diameter over the interior medial side of the right thigh at the junction of the upper 1 /3rd and lower 2/3rd with the swelling and ecchymosis around the wound. The shalwar also was stained with blood and also a contused wound 3/4' x 1/2' into the skin deep over the radial region of the left lower forearm. The injury No. 1 appeared to be caused by fire-arm and the injury No. 2 by blunt and hard substance Now it may be noted that it is not thecase of the prosecution that the injured Mst. Rasheedan has suffered any other injury than the one with the fire-arm; therefore, the examination of the doctor even on this point cannot be relied definitely. This doctor states that the nature of the injuries was awaited till on 18-2-1967 when she was discharged, admittedly she was admitted in hospital on 29-1-1967, One wonders why the doctor could not find the nature of the injuries grievous or simple for such a long time and his reasoning that because Mst. Rasheedan was in a state of pain and not being in a position to attend to pursue her normal life therefore, the nature of the injury No. 1 is grievous while injury No. 2 is simple and that conclusion he reached after keeping under observation according to him from 29-1-67 to 18-21967, In his cross-examination this doctor shows his negligence as from what distance the fire-arm was discharged and that he cannot say the exact position at the time when she received injuries and that he cannot say what kind of fire-arm was used and the two injuries were not caused by one weapon. To say the least, statement of this Medical Officer in cross- examination who supposed to have kept Mst. Rasheedan for a long time under observation and being expert should have known what kind of weapon was used because she was admitted on the same day to the hospital and also it would riot be normally difficult for the doctor to give his opinion with regard q to the distance from where the fire-arm was used. This Medical Officer entirely denies such knowledge which should be within his knowledge as he has studied on this subject and he was examined for this very purpose, his statement raises doubt in my mind that this witness is not telling truth.
7. It appears to me that while convicting the appellant the trial Judge instead of thoroughly examining the prosecution evidence and weighing the same was led astray by the existing enmity between the complainant and the appellant as he observed that there existed very strong motive for the appellant to make the attempt on the life of his divorced wife and that it is an admitted fact that the appellant has been dragged from Court to Court on the charge of murdering his father- in-law and brother-in-law and after his acquittal he was so enraged that without any request on the part of the injured Mst. Rasheedan he divorced her. Now to say the least there is no evidence that the appellant was enraged due to his being dragged from Court to Court as observed by the learned trial Judge and also the motive for the divorce was not borne by the statements on the record. Therefore, the enmity could be pleaded in favour of the appellant as well that the complainant party as argued by counsel could and did involve the appellant in a false case as they tried as admitted by the complainant to involve him in dacoity and other references in the same case. In criminal cases particularly when there is existing enmity between the parties before awarding conviction it is the duty of the trial Court to be fully satisfied to the guilt of the accused beyond any reasonable doubt and he is to be more particular and strict where enmity exists between the parties and motive of false implications are nut ruled out. Unfortunately this aspect of the case in my opinion has been ignored by the trial Court. Again the trial Judge observed that "if the accused bad not incidentally found witnesses Muhammad d Hussain and others coming, he may have fired another shot.
In any case the first shot was high enough to hit the forearm and thigh of Mst. Rasheedan. It is sheer luck that the vital parts or her body were not hit." Now this observation again is not called for from the record. Firstly, as per medical evidence the injury on the forearm is not caused by any fire- arm but according to the doctor by some blunt weapon, secondly this Muhammad Hussain did not support the prosecution case who has been declared hostile. It may also be noted that this Muhammad Hussain is relation of both the appellant and the complainant because he states in his cross-examination that complainant Mst. Naziran's husband was his real brother and that the appellant's relationship with him is only that the appellant is his sister's son, he being nearly related to Muhammad Din who is allegedly murdered by the appellant, would have been more interested to implicate the appellant if he had seen the incident. I therefore, give no credence to the statement of this prosecution witness.
8. For the reasons given above I accept this appeal, set aside the judgment of the learned Sessions Judge, Nawabshah dated 21-2-1970 and acquit the appellant because the prosecution has failed to prove its case beyond any reasonable doubt. Bail bond if any stands cancelled.