' This judgment shall dispose of Criminal Appeal No,489 of 1990 and Criminal Revision No,6 of 1991 as both these arise from the same judgment, dated the 1st of July, 1990, of the learned Additional Sessions Judge, Mianwali, whereby he convicted the appellant Ata Ullah Khan under section 302/34, P.P.C. And sentenced him to imprisonment for life with a fine of Rs,10,000 (Rupees ten thousand only) in default whereof he was ordered to further undergo one year's R.I. The appellant was also given the benefit of section 382-B, Cr.P.C. Sooba Khan and Shahjchan Khan co-accused were acquitted of the charge. The fourth co-accused Gul Khan was declared proclaimed offender.
2. The prosecution case is that on the fateful day at about 5-30 p.m., Mohabbat Khan deceased was proceeding towards wheat field to make water followed by the complainant' Mchrban Khan (P.W.10) who was proceeding to see off his brother Khan Zaman (P.W.11). They saw Gul Khan armed with rifle; Ata Ullah Khan (appellant) his brother; Sooba Khan and Shahjehan Khan (co-accused) his sons, all carrying .12 bore guns, emerged there raising Lalkaras that Mohabbat Khan shall not be spared. Ata Ullah Khan (appellant) as well as Sooba Khan and Shahjehan Khan fired at Mohabbat Khan with their guns but missed the target; then Gul Khan, absconding accused, fired a rifle shot at Mohabbat Khan which brought him down. All the accused persons thereafter made good their escape alongwith their weapons. Mohabbat Khan died at the spot.
3. The motive of the offence is that two years prior to the occurrence, the deceased had injured Gul Khan absconding accused with a fire-shot and consequently a case under section 307, P.P.C., was registered which was pending even at the time of the occurrence. Gul Khan, therefore, had, in complicity with his sons, Sooba Khan and Shahjehan Khan, and his brother, Ata Ullah Khan appellant, wreaked vengeance on the deceased. The complainant had brought the matter to police vide his statement (Exh.P.H.) whereupon a formal F.I.R. (Exh.P.H./1) was drawn up. Malik Ghulam Muhammad, Inspector (P.W.13) had initially conducted the investigation, prepared inquest report and injury statement, recorded statement of the eyewitnesses, collected blood-stained earth and subsequently got the site plans (Exhs.P.D. And P.D./1) prepared from Ghulam Qasim Patwari (P.W.7) in the scale of ten Karams to an inch. He was also associated with the proceedings under sections 87 and 88, Cr.P.C., against .Gul. Khan who was absconding. Investigation was partly conducted by Ghulam Farid, Sub-Inspector (P.W.12) who had arrested Ata Ullah Khan appellant on the 26th of April, 1989, who on interrogation made disclosure that he could lead to recover a gun from his residential Dera. The gun (P.4) consequently was got recovered at his instance and secured into possession vide memo. (Exh.P.E.) and a complaint in respect of it was also drafted under the Arms Ordinance, 1965. He had also arrested Sooba Khan and Shahjehan Khan accused on the 11th of May, 1989, who also led to the recovery of guns and cases under the Arms Ordinance were also registered against them. This Investigating Officer also verified the factum of absconsion of Gul Khan and had prepared an amended challan on the 4th of August, 1989, against him as well as proclaimed offender. The essence of the investigation with respect to the recoveries is that though guns had been recovered from the appellant and his co-accused (Sooba Khan and Shahjehan Khan), yet since pellets could not be available, the guns were not sent to the Forensic Laboratory for examination. Blood-stained earth (Exh.P.J.) taken from the spot, however, was opined to carry blood of human nature as indicated by the report of the Chemical Examiner.
4. Dr. Muhammad Khan (P.W.4) had conducted autopsy on the dead body of Mohabbat Khan and found the following injuries:--
(1) One entry wound of projectile on the upper part of cheek 3/4 c.m. x 1/2 c.m. In size, 3 c.m. Left to the nose, 1 c.m. Below the eye, 8 c.m. From the left ear.
(2) An exit wound on the back of the skull, 1-1/2 c.m. x 1 c.m. And 1 c.m. Right to the midline and 8, c.m. From the right ear.
' Injury No,1 was opined to be ante-mortem and sufficient to cause death in the ordinary course of nature. The duration between injury and death was immediate while between death and post- mortem was about 17 to 19 hours.
5. Gul Khan accused had been declared proclaimed offender and was proceeded against at the trial under section 512, Cr.P.C. The remaining accused persons Sooba Khan and Shahjehan, however, denied the allegations put up against them and also the recoveries and pleaded innocence having been involved in the case on account of close relationship with their father Gul Khan absconding accused. Ata Ullah Khan accused also denied his presence at the spot or participation in the offence. He also denied the recovery of gun (P.4) from him. He imputed his false implication in the case to his being brother of Gul Khan who had enmity with the complainant since long.
6. The complainant (P.W.10) in his statement and also his complaint (Exh.P.H.) has spotlighted the motive of the occurrence which was an incident having taken place two years prior to the occurrence wherein Mohabbat Khan deceased had fired at Gul Khan with gun who suffered injuries and a case under section 307, P.P.C. Was consequently registered against the deceased and, therefore, it was the turn of Gul Khan to wreak vengeance upon the deceased. Thus, Gul Khan had strong motive to commit the offence. The appellant and his nephews (Sooba Khan and Shahjehan Khan) apparently had no motive. The learned trial Court held so vis-a-vis Sooba Khan and Shahjehan Khan stating "To my mind both these accused Sooba Khan and Shahjehan had little motive to participate". Surprisingly the same inference, however, was not drawn in favour of the appellant in spite of the fact that evidence against them all on the subject was exactly the same.
Evidence of good quality exists against the absconding accused but not against the appellant or the acquitted accused. I, therefore, hold with the learned counsel for the appellant that he, like the acquitted accused, had no motive to commit the offence.
7. The learned trial Court had rightly rejected the recoveries of guns from the appellant and his two co-accused. No crime empty was recovered from the spot to establish use of guns in the occurrence. No witness from the locality, wherefrom the recovery of guns had been, was joined to witness the same as required under the mandatory provisions of section 103, Cr.P.C., nor is any explanation forthcoming on the exigcncy calling for dispensing with association of public witnesses from the locality. Further, there was no occasion for the appellant to keep the gun in his house as souvenir for a long period of one and a half months after the occurrence. Again surprisingly the learned trial Court in spite of the fact that the appellant has not caused any injury to the deceased and recovery of gun had not been effected from him, still proceeded to convict him on the basis of ocular account comprising two brothers, namely, Mehrban Khan (P.W.10) and Khan Zaman (P.W.11) first cousins of Gul Khan absconding accused. They have stated that the appellant as well as Sooba Khan and Shahjehan had fired gunshots at the deceased which did not hit him and that it was the absconding accused whose solitary fire-shot hitting the deceased proved fatal. The learned trial Court rightly observed that had Sooba Khan and Shahjehan Khan fired from their guns from a distance of 22/23 yards, as alleged by the complainant, some pellets must have hit the deceased, but amusingly the learned trial Court has not extended the same benefit to the appellant who alongwith the said accused 'had allegedly fired from his gun at the said distance which obviously is not much. The .12 bore gun shots from three guns necessarily must have spread and hit the deceased. The facts that the appellant had not injured the deceased and that no pellets were recovered from the spot and sent alongwith the alleged gun of the appellant for examination, militate against the presence of the appellant at the spot. The learned trial Court, whereas was right in giving benefit of doubt to Sooba Khan and Shahjehan Khan, was manifestly wrong in withholding the same benefit in the case of the appellant, the evidence against them all being exactly the same. In the circumstances, I accept the appeal and set aside the appellant's conviction and sentence and giving him the benefit of doubt acquit him. The connected revision is dismissed.