FAZAL KARIM, J.-Muhammad Siddique, appellant, was tried along with three others,namely, Ilam Din, Muhammad alias Muhammad Khan and Muhammad Khan son of Gul Jahan, by the learned Magistrate Section 30, Mianwali, under Section 307 read with Section 34 of the PPC for causing injuries to Muhammad Fayyaz (PW2) and Muhammad Khan (PWS). By his judgment dated 30.3.1988, the learned Magistrate acquitted Ilam Din, Muhammad alias Muhammad Khan and Muhammad Khan son of Gul lahan, accused persons, but convicted Muhammad Siddique, appellant, under Section 307 of the PPC and sentenced him to suffer R.I. For five years and to pay a fine of Rs.15,000/- and in defauIt to undergo one years R.I. Out of the amount of fine, if recovered, Rs.10,000/- was directed to be paid to Muhammad Fayyaz PW as compensation.
2. Muhammad Siddique, appellant, and Muhammad Khan son of Gul Jahan accused were brothers and so were Ilam Din and Muhammad alias Muhammad Khan accused persons.
3. The incident resuIting in injuries to Muhammad Fayyaz and ^Muhammad Khan son of SuItan Ahmad PWs occurred at about 12.30 A.M. On 12.7.1985 and was reported at the police station by Dost Muhammad (PW4) at 8.30 A.M. On the same day.
4. The prosecution case was that a week before 12.7.1985, Muhammad Fayyaz PW and one Atta Muhammad had slapped Ilam Din accused. On the night of the occurrence Muhammad Fayyaz (PW2), Khatas (PW3), Dost Muhammad(PW4) and Muhammad Khan son of SuItan(PW5) were going on a tractor from Mianwali to Mangni when on the way the appellant and his co-accused emerged from Sarkandas and attacked them. They recognised them in the light of the tractor.Muhammad alias Muhammad Khan accused challenged them sayigthat they would teach them a lesson for insuIting Ilam Din. He fired a shot but nobody was hit. Then Muhammad Siddique, appellant, fired a shot, which hit Muhammad Fayyaz PW on the back of his leg. Muhammad Khan PW descended from the tractor to intervene and Muhammad Khan son of Gul Jahan gave him a hatchet blow on his right arm. Muhammad Khan son of Gul Jahan also gave a hatchet blow on the right hand of Muhammad Fayyaz PW.5. The medico-legal reports of Muhammad Khan and Muhammad Fayyaz PWs show that Muhammad Khan 1iad suffered a lacerated wound 1 cm x 1/2 cm on the right upper arm and Muhammad Fayyaz PW had suffered four injuries, two of them being the fire-shot injuries, consisting of an entry wound and an exit wound on the right leg and the other two being blunt weapon injuries.
6. The injured persons were taken to the hospital, where they were admitted. According to the FIR, armed with the medico-legal reports, Dost Muhammad went to the police station and reported the incident.
7. It is significant to note that according to the prosecution, an empty was found at the spot; a gun was also recovered from the appellant but the empty and the gun were not sent for comparison to the fire-arm Expert.
8. The learned Magistrate observed that if the alleged motive was believed, then Ilam Din accused "should have been on the fore-front in this occurrence. He is simply shown present armed with pistol and no overtact of any sort is attributed to him. He is comparatively the youngest among all the four accused and was 18/19 years old at the time of occurrence. In view of the motive and his youth he should have played a leading role. Further more his brother Muhammad alias Muhammad Khan should also have played major role. He is attributed a lalkara and firing at Muhammad Fayyaz with his gun". In this connection, the learned Magistrate also noticed that" Ilam Din and Muhammad alias Muhammad Khan are real brothers while Muhammad Siddique and Muhammad Khan are real brothers. The prosecution has not established their interse relation." As regards Muhammad Khan son of Gul Jahan accused, the learned Magistrate noticed that :- "Khatas PW3, Dost Muhammad PW4 and Muhammad Khan PW5 unanimously deposed that Muhammad Khan son of Gul Jahan caused injuries to Muhammad Fayyaz PW2 and Muhammad PW5 stated that Muhammad Mian son of Gul Jahan accused caused injury to Muhammad PW5 from the wrong side of hatchet and to him with hatchet. The medico-legal reports of both witnesses show that injury to Muhammad Khan PW5 and injury No.4 of Muhammad Fayyaz PW2 was caused with a blunt weapon. Accordingly the medical evidence contradict oral testimony of the witnesses".
9. The learned trial Magistrate then went on to observe that the occurrence took place at mid- night.
"The identification was conducted in the head lights of the tractor. These are discrepancies in the statements of witnesses regarding visiting the police station before going to hospital or after ward.
He, therefor, concluded that " involvement of Ilam Din, Muhammad Khan son of Gul Jahan and Muhammad Khan son of Yousaf is pregnant of grave doubts and suspicions". The learned trial Magistrate, however, found it possible to convict Muhammad Siddique saying that he had been attributed firing at Muhammad Fayyaz; one empty was recovered from the spot and that as the PWs and Muhmmad Siddique, appellant, were co-villagers, they could have easily identified him.
10. It was in the evidence of Muhammad Fayyaz.PW that the place of incident was a jungle; it was at a distance of about 1L miles from the residential Deras of the appellant arid his co-accused. As the learned trial Magistrate rightly observed, no community of interest was established between the appellant and his co-accused Ilam Din and Muhammad alias Muhammad Khan. This had this relevance that the insuIt which had moved the appellant and his co-accused to waylay Muhammad Fayyaz and Muhammad Khan PWs etc. At mid-night had been suffered by Ilam Din at the hands of Muhammad Fayyaz. Then the fact that the culprit or culprits had concealed themselves in Sarkandas in a jungle at that hour of the night shows and shows clearly that they wanted to conceal their identity. They would not, therefore, have exposed themselves to the tractor's light to enable the PWs to recognize them. They had made preparations armed with such deadly weapons as guns and carbines and all this could not have been done by a person, who had a week earlier, been slapped by one of the culprits. A reading of the statement of Khatas Khan PW gives the impression that the complainant and Khatas Khan had been to the police station before Azan time but, as seen above, the FIR was not recorded till 8.30 A.M. Dost Muhammad PW admitted that he had other enemies. Muhammad Fayyaz PW also admitted that his maternal uncle Ghulam Hassan's wife Mst. Sardar Bibi was a cousin of the appellant; that she had instituted a suit for dissolution of marriage and that Muhammad Siddique, appellant, was helping her, so much so that he was her witness in the case. Muhammad Fayyaz PW said that he had not lost his senses as a resuIt of the injury; Khatas Khan PW, however, said that he had become unconscious; he went so far as to.Say that Muhammad Khan PW, who had suffered a small lacerated 1 cm x 2 cm on the upper arm, had also lost consciousness. Muhammad Fayyaz PW gave him a lie saying that he had not lost his senses, he went to the length of saying that he had himself driven the tractor on his way back. All these facts, in my view, had the effect of rendering the case against the appellant also doubtful. I would, therefore, accept the appeal, set aside the conviction and sentence and acquit the appellant. He shall stand discharged of his bail bond.