' This appeal has arisen out of the conviction of the appellant under section 307, P.P.C. By Magistrate Section 30, Mianwali vide judgment, dated 19-7-1989 where under the appellant was sentenced to five years' R.I. And a fine of Ri.5,000 and in case of default of payment of fine the appellant was sentenced to undergo further R.I. For six months. It was ordered that in case the fine be recovered, 50% of the same shall be paid to the complainant as compensation. The appellant was also awarded the benefit under section 382-B, Cr.P.C. The co-accused of the appellant, Habib Ullah was, however, acquitted by the trial Court having been given the benefit of doubt.
2. The occurrence was reported to Mr. Fiaz Akhtar A.S.I. P.W.7 by Said Rasool injured P.W.1 while A.S.I.
Was on patrol duty at 7-15 p.m. And was present at Adda Truck Mianwali. The complainant had alleged that after closing his shop of Barber he was proceeding towards his home and when he reached the canal bridge at about 5-30 p.m., the appellant and his brother Habib Ullah emerged out of the bushes armed with .12 bore guns. Habib Ullah raised Lalkara whereon the appellant fired shot from his gun hitting Said Rasool on the upper part of the right arm. He stumbled. Habib Ullah fired at him which missed him. He fell from bicycle and on his alarm Ghulam Rasool, his father and Faiz Ullah son of Abdullah, his cousin came to the spot who were passing by that side per chance.
The said witnesses came to the spot, picked him up, and in the meantime both the accused ran away from the place of occurrence. The motive of offence was given as the suspicion of the accused about the illicit relations of P.W. With Mst. Azizan a cousin of the accused persons.
3. Report under section 173, Cr.P.C. Was filed against both the accused, Sultan Ahmad appellant and Habib Ullah. Both the accused were charged under section 307/34, P.P.C. By the trial Court. The charge was put to the appellant and his co-accused which was denied and the trial commenced.
4. The prosecution produced P.W.1 Said Rasool injured P.W., Faiz Ullah P.W.4 and Ghulam Rasool P.W.5 as the witnesses of the occurrence. P.W.2 Muhammad Iqbal and P.W.3 Muhammad Aslam were the witnesses of the recovery of gun at the instance of the appellant from within his Baithak by digging out a pit. Dr. Sh. Muhammad Latif P.W.6 was a Radiologist who deposed that no bony injury was seen nor a foreign body was traced in the X-ray of Said Rasool P.W.1 Dr. Shamsul Haq P.W.8 had conducted the medical examination and issued medico-legal report, Exh.P.G. And also proved diagram of injury as Exh.P.G.1. He found the following injuries on his person:--
(1) packered, oval, wound of inlet 1 c.m. x 0.8 c.m. On the right upper arm x 10 c.m. From the acromial end of the left clavicle.
(2) Gaping wound of exit 1 c.m. x 1 c.m. x 3 c.m. From the injury No,1 and anteriorly.
' Both these injuries were found to be caused by fire-arm. The injuries received by the complainant were X-rayed vide X-ray file Exh.P.C.1. Both the injuries were declared simple vide report Exh.P.H. Fiaz Akhtar A.S.I. P.W.7 was the Investigating Officer who has recorded Exh.F.1.A., the statement made to him by Said Rasool. He also proved the formal F.I.R. Exh.P.A./1 recorded by. Bashir Ahmad, Moharrar Head Constable who was reported dead and was given up on 7-8-1995.
5. P.W.7, after recording the Exh.P.A., took into possession Shirt P.2 and Jursi P.3 of Said Rasool P.W.
Vide memo. Exh.P.C. He prepared rough site plan Exh.P.D. Of the place of occurrence. He took into possession gun P.I which was recovered at the pointation of the appellant from within his Baithak after digging the pit vide memo. Exh.P.B. The site plan of the place of recovery was also prepared by him which was Exh.P.E.
6. The accused were examined under section 342, Cr.P.C. And they pleaded innocence. Both the appellant and his acquitted co-accused also made their own statements on oath under section 340(2), Cr.P.C. And denied the allegations.
7. The statement of the injured P.W., Exh.P.A. Was recorded while P.W.7 was out on patrol duty and P.W.4 and P.W.5 being close relatives of the injured P.W. Were made the witnesses of occurrence and in the circumstances of the case it appears that Exh.P.A. Was recorded after deliberations, pre- consultation and preliminary investigation. Faiz Ullah P.W.4 and Ghulam Rasool P.W.5 were not supposed to be present at the place of occurrence at the given time and their evidence does not inspire any confidence. Both of the P.Ws. Are disbelieved to that extent. There remains only one P.W.
Of the occurrence and that is Said Rasool injured P.W. Himself. He shall be discussed at the relevant stage of the judgment.
8. Muhammad Iqbal P.W.2 and Muhammad Aslam P.W.3 are the recovery witnesses of the gun P.1 Muhammad Aslam P.W was the real brother of Said Rasool injured P.W. And Muhammad Iqbal P.W.2 was their brother-in-law. There was no independent and respectable witness of the alleged recovery of gun from the locality. The place of recovery was the Baithak of the appellant and his acquitted co-accused. The gun P.1 was alleged digged out from the floor of Baithak which prima facie appears to be unnatural. Nobody would dig up the floor of Baithak to conceal the gun. This was against the normal human behaviour. The gun could have been concealed somewhere else or could have been disposed of in the circumstances of the case. I disbelieve the factum of the recovery of the gun.
9. P.W.6 Dr. Sheikh Muhammad Latif and P.W.8 Dr. Shamsul Haq, the expert witnesses regarding medical examination of Said Rasool P.W., stated that no foreign body was found around the injury on the person of Said Rasool and P.W.8 found the injuries as simple. There was no suggestion from the defence challenging the medical examination or the report of these two doctors. The existence of simple injuries on the person of Said Rasool P.W. Is proved.
10. Said Rasool P.W.1 remains the only witness to be discussed here. He has described the mode of occurrence and has admitted that he was at the mercy of the accused persons but they did not cause him any further injury. It is in the evidence of the prosecution that Habib Ullah acquitted accused was found innocent by the Investigating Officer. This witness nominated Faiz Ullah is cousin and Ghulam Rasool his father as the witnesses of occurrence. Both have been disbelieved and having disbelieved the same and their presence at the spot would naturally lead this Court to see if there could be any other available witnesses of the occurrence at the given time. None has been nominated nor the Investigating Officer has made any effort to collect any other available evidence in the case. Having disbelieved P.W.1 regarding the presence of P.W.2 and P.W.3 at the time of occurrence the motive part of the story is also to be seen in the same context. It is important to note that a very grave motive was attributed to the accused in the case. The honour of the family of the accused which was involved but still the prosecution did not bother to prove the motive part of the story. Due notice is taken of the fact that P.Ws. Were Hajam whereas the accused persons were Pathans and the motive, if believed, must have been very grave and the conduct of the accused as alleged at the time of occurrence does not support this motive story also because they left the P.W. Alive though he was at their mercy. The P.W. Is disbelieved regarding the story of motive as well.
12. The appeal is accepted. The conviction is set aside and the appellant is discharged of the bail bond.