KHALIL-UR-REHMAN RAMDAY, J.---Inam Ullah and his brother Sami Ullah Tariq had been tried by a learned Additional Sessions Judge at Faisalabad for having allegedly committed the murder of one Qamar Shehzad on 31-5-1989 at about 5-30 p.m. The said learned trial Judge extended benefit of doubt to both these accused persons and through his judgment dated 11-7-1991 acquitted both of them.
2. Liaquat complainant approached this Court through Criminal Revision No.787 of 1991 calling in question the said acquittal. This petition was dismissed to the extent of Inam Ullah and notice was issued only to Sami Ullah Tariq in the said connection.
3. The parties have been heard.
4. The case of the prosecution was that at the abovementioned time of occurrence, Liaqat complainant and his nephew Qamar Shehzad deceased were returning home with their animals and when they reached the Dera of the accused persons in question both of them emerged there out of whom Sami Ullah Tariq was armed with a .7 mm rifle while Inam Ullah was armed with a revolver. The prosecution had further alleged that on a Lalkara raised by Inam Ullah accused both the accused persons caught hold of the deceased and dragged him to their fields whereafter Sami Ullah accused fired a shot with his .7 mm rifle hitting the back chest of the deceased who consequently fell down, injured and subsequently died. It had been further claimed by the prosecution that Inam accused then fired a second shot which missed the deceased and instead landed at the front chest of Sami Ullah accused.
5. When confronted with the prosecution case Sami Ullah accused pleaded that it was in fact the deceased who had mounted the attack on him firing a shot at his front chest and it was in the exercise of his right of self-defence that he had fired back at the deceased.
6. The doctor who had conducted the post-mortem examination of the dead body of Qamar Shehzad deceased had found a fire-arm wound at the back of the chest of the said deceased and he had found a wound of exit on his front chest. The margins of wound of entry carried tattooing and blackening around it. Dr. Abdus Sattar (D. W.1) who had examined Sami Ullah on the very day of occurrence at 9-15 p.m. Had found a fire-arm injury on his front chest which injury had also blackening around it. This indicates that the deceased as also Sami Ullah accused were within 3 to 4 feet from the one who had fired the shots at them. The prosecution case is that Sami Ullah accused had received the said injury when he had already fired a shot at Qamar deceased and whereafter Sami's brother Inam had fired another shot at the deceased which had instead hit Sami accused. As has been noticed above, the shot fired at Sami accused had been fired from a rather close range. If Qamar deceased had already received an injury at the hands of Sami accused then there is a possibility that he would have immediately fallen down. In this situation if a companion of Sami Ullah accused was to fire a second shot at the deceased then he would have fired this shot down at the deceased and not straight.
7. In this view of the matter the explanation offered by the prosecution relating to the injury received by Sami Ullah accused was open to serious exception. If it is presumed that after receiving the fire-arm injury on his person the deceased had kept standing and it was in this position that Inam accused had fired another shot at him then we cannot lose sight of the fact that the injury received by Sami Ullah accused was on his front chest. This would mean that Sami accused was facing Inam accused while the deceased was in-between the two because it is only in that situation that the shot fired by Inam accused at the deceased could hit Sami accused on his chest.
Since the injury on the chest of Sami accused carries blackening around it then, as has been mentioned above, his brother would only be 3 to 4 feet away from him. In this case it is difficult to believe that knowing that his brother is standing only 3 to 4 feet away, Inam accused would fire a shot at the deceased who would be in front of his brother and would thus run the risk of his fatally injuring his own brother. On this score also the prosecution story with respect to Sami's injury is open to rather serious doubts.
8. The Investigating Officer had admitted in his cross-examination that when he had examined Sami accused, the very first plea taken by him was that of self-defence. The Investigating Officer had further admitted that it had come to his knowledge during the course of investigation that it was Qamar deceased who had fired a shot at Sami accused.
9. The learned trial Judge also took into consideration the evidence of motive led by the prosecution and did not find the same of the type which could corroborate the prosecution case and rightly so.
10. In these circumstances when the learned Judge had found that the defence case was reasonably possible and had thus extended the benefit of doubt to Sami accused then such a finding of the learned trial Judge could not be said to be arbitrary or without any basis in the evidence available on record.
11. Consequently, eve find that no exception can be taken to the impugned judgment and this petition is, therefore, dismissed.