1. ' JAVID IQBAL, J.--Leave to appeal has been granted in this case only to Abdul Majeed and Muhammad Yaqub appellants against their conviction and sentence awarded to them by the Lahore High Court Bahawalpur Bench vide judgment dated 10th March 1985.
2. ' Briefly the facts are that the two appellants along with Talib Hussain, Noor Muhammad, Muhammad Ayub and Muhammad Abbas were tried for offences under section 307/302/452/34, P.P.C. And vide judgment of the trial court Muhammad Ayub and Muhammad Abbas were acquitted whereas the rest of them were convicted under section 302/34, P.P.C. And Talib Hussain was sentenced to death plus fine while the two appellants as well as Noor Muhammad were sentenced to life imprisonment plus fine each. These four were also convicted under section 307/34, P.P.C. And each of them was sentenced to five years' R.I. Plus fine on each of two counts.
3. They were likewise convicted under section 452/34, P.P.C. And each of them was sentenced to three years' R.I. Plus fine. The sentences of imprisonment were ordered to run concurrently. On appeal of the four convicts, Noor Muhammad was acquitted by the High Court whereas the appeal of the present appellants as well as Talib Hussain was dismissed and the death sentence awarded to Talib Hussain was confirmed.
4. ' The deceased in this case is Allah Yar, and there are two injured prosecution witnesses namely Umar Hayat PW1 and Mst Zohran Bibi PW2, both brother and sister of the deceased. The occurrence took place after Zohar prayers on 14th August 1980 in the Ihata of the house of Muhammad Yar P.W.4 within the area of Chak 163/7-R, District Bahawalnagar. The report was lodged by Umar Hayat P.W. At 5 p.m. On the same day. All the members of the accused party were arrested on 20th August 1980. Fire-arms in the form of guns were recovered from the appellants as well as Talib Hussain and rifle was recovered from Noor Muhammad. But these recoveries are of no consequence as no crime empties were picked up from the spot. The case of the prosecution therefore was based on the ocular testimony of Umar Hayat Injured P.W.1, Mst. Zohran Bibi injured P.W.2, Muhammad Ashraf P.W.3, uncle of the deceased, and Muhammad Yar P.W.4 maternal-uncle of the deceased, supported by the motive version and medical evidence.
5. ' The motive as set up by the prosecution was that three months before the present occurrence there was an altercation in the school between Umar Hayat P.W. And one Muhammad Boota, a friend of Talib Hussain. On this Talib Hussain gave a beating to Umar Hayat P.W. Who informed his uncle Muhammad Ashraf P.W. And the latter protested to Talib Hussain about the matter. But after a few days, Talib Hussain alongwith some others also gave a beating to Muhammad Ashraf P.W.
6. Anyway the immediate cause of occurrence was the throwing by Talib Hussain of a pebble at the deceased while he was offering his prayers which led to a scuffle between the deceased and Umar Hayat P.W. On the one hand and Talib Hussain on the other in which blows were exchanged. Talib Hussain took it as his insult and came alongwith the others duly armed with guns and fired a shot at the deceased killing him on the spot. Abdul Majeed and Muhammad Yaqub appellants who were also stated to be armed with guns, were ascribed to have fired one shot each at Umar Hayat and Mst. Zohran Bibi P.Ws. Causing one fire arm injury to Umar Hayat P.W. And two fire-arm injuries on one finger each of both the hands of Mst. Zohran Bibi P.W.
7. ' The trial Court despite the enmity accepted the ocular testimony in this case and held: ' All the accused are related inter se and bore grudge against the complainant party. Although the P.Ws. Are closely related inter se yet they were naturally present at the spot and had corroborated the statement of each other. In such a situation in our society normally the near relations of the deceased come forward and no body else is ready to take the risk of enmity with the accused person. In the present case the P.Ws were present in the house of Muhammad Yar P.W. And the presence of the P.Ws. Mst. Zohran Bibi and Umar Hayat was established through their being injured in the occurrence".
8. ' The trial Court also accepted the individual role attributed to Abdul Majeed and Muhammad Yaqub appellants. It was further observed that all the prosecution witnesses were cross-examined at great length but no material discrepancies surfaced so as to impugn their credibility. As regards Muhammad Ayub and Muhammad Hayat, as they were attributed the roles of ineffective firing, the trial Court held their participation doubtful and acquitted them.
9. ' The High Court while re-appraising the evidence held that the incident occurred in the house of Muhammad Yar P.W. From where blood-stained earth was secured and two prosecution witnesses, namely, Umar Hayat, P.W.1 and Mst. Zohran Bibi, P.W.2 were found to be injured. Further that the presence of Muhammad Yar P.W. Could not also be denied as he was the owner of the house and as for Muhammad Ashraf P.W., he lived closeby, and therefore his being there could not be regarded as unnatural. On this premise, the High Court accepted their testimony even without any corroboration as it was consistent with the other circumtances of the case, and enmity was not regarded as a factor so as to prompt their false implication. The injury caused to Allah Yar deceased was held to be by a ball-cartridge having regard to dimensions of the injury, and as to the conflict in the distance from where the shot was fired, the High Court held that the villagers being 'simpleton' could not be expected to give an accurate distance. As for the injuries on the other two caused by the shots fired one each by Abdul Majeed and Muhammad Yaqub appellants, the High Court also accepted the roles attributed to them, and ultimately held as under: "For the foregoing reasons we are convinced that the prosecution witnesses are true and trustworthy and the occurrence had taken place in the manner narrated by them. We therefore hold that Talib Hussain, Abdul Majeed and Muhammad Yaqub appellants have been rightly convicted for the offences under sections 452, 307 and 302, P.P.0 read with section 34, P.P.C."
10. ' However Noor Muhammad was given the benefit of doubt and acquitted as no shot appeared to have been fired from his rifle.
11. ' So far as Talib Hussain is concerned, on examination of the evidence on record and the reasons given by the Courts below, this Court was of the opinion that the case as against him stood established beyond any shadow of doubt, and therefore he was not granted leave. His prayer to that effect was dismissed.
12. ' However about the present appellants namely Abdul Majeed and Muhammad Yaqub, it was argued that each of them was said to have fired one shot which hit Umar Hayat and Mst. Zohran Bibi P.Ws. According to the medical evidence the injuries on Mst. Zohran Bibi P.W. Were one each on the front and outer aspect and back of terminal phalanx of left finger and the other on the back of the right hand between the muscles of ring and middle fingers, while the simple fire-arm injury on Umar Hayat P.W,. Was lacerated wound on his left hand below wrist joint. They did not cause any injuries to the deceased. It was vehemently contended that the injuries attributed to them, in the background of evidence of enmity, could not be the result of one shot each fired by the two appellants on the two P.Ws. It was also submitted that on this point the ocular testimony was in conflict with the medical evidence. There is force in the arguments of learned counsel. The strong possibility cannot be ruled out that they might bave been hit by the stray pellets of a single shot about which there was uncertainty as to who had fired it.
13. ' Since this is the position, as an abundant caution, we give benefit of doubt to Abdul Majeed and Muhammad Yaqub appellants and acquit them. Their appeal is allowed and they shall be released from jail forthwith if they are not required in any other case. However the petition for leave of Talib Hussain stands already dismissed.