' These are two connected appeals which arise from the judgments of 1st Additional Sessions Judge, Nawabsbah in two separate cases. In the first case the appellant was convicted for offence under section 307, P. P. C. And sentenced to undergo R. I. For 5 years and also for offence under section 13-D of the Arms Ordinance and sentenced to undergo R. I. For 1 year. In the second case the appellant was convicted for offence under section 13-D of the Arms Ordinance and he was sentenced to suffer R. I. For one year. All these sentences to run concurrently.
2. It is the case of the prosecution that concurrently Kadirdino son of Moose Lakho was kamdar of Ghulam Rasool Lakho. One year ago appellant Gulab had quarrelled with Kadirdino and he had tiled a case against Kadirdino whichh ended in acquittal. Gulab had, therefore, a grudge against Kadirdino. On 18-12-1973 at about 1 p.m. Kadirdino was returning from the land by Inspection Path on the bank of Sadawah. Gulab happened to be going on the same path in the opposite direction.
On seeing Kadirdino, Gulab took out a country-made pistol from the folds of his shalwar and fired at Kadirdino. The pellets hit Kadirdlno on the chest, wrist and face. He then raised cries on which Allan came along. Gulab thereafter fired another shot at Kadirdino but it missed. Gulab fired a third shot and ran away. Thereafter Khuda Bux Awan came there and Kadirdino narrated the facts to both Allan and Khudabux. Kadirdino was taken on a horse to the village of his Zamindar Rais Ghulam Rasool. He narrated the incident to the Zamindar who then sent him for lodging report with the police in his car along with his nephew All Gohar. The complainant accordingly lodged report at Padedan Police Station situated 13 miles away at 6.30 p.m. Next day, that is, on 19-12.1973. A. S. T.
Ghulam Haider proceeded to the scene of offence. He examined P. W. Allan, Khuda Bux and Ghulam Rasool. On 24-2-1973 the A. S.
1. Received spy information that the appellant would pass on Dhouron bridge at night. He then left tor Dhouron bridge along with police party and reached the bridge at 12-00 mid-night. At about 2 a.m. The appellant was found coming towards the bridge. He was stopped and on search one country-made pistol and two live cartridges were recovered from his person. The appellant was then challaned in two separate cases on 7-1-1974 in the Court of Civil Judge and F. C. M., Nausheroferoze who committed the appellant to the Court of Session.
3. It has been argued on behalf of the appellant that the conviction of the appellant has been based on she evidence of the complainant and one Allan who are both interested witnesses, inimical to the appellant, and who had the motive to falsely implicate him. That there was no corroborative evidence either direct or circumstantial and the medical evidence was in conflict with the evidence of the injured and the only eye-witness Allan.
4. Dr. Abdul Hakim Medical Officer, Padedan found the following injuries on the person of the complainant r-
(1) Circular lacerated wound on the right side of chest below nipple 1/3' diameter, skin deep.
(2) 7 small circular lacerated wounds on the right fore-arm outer aspect in a radius of 3'x diameter each.
(3) Circalar lacerated wound on left cheek diameter with swelling around it.
' In the opinion of the medical officer all the injuries were simple in nature. The injury No. 1 was result of one shot while injuries 2 and 3 were a result of the second shot. None of the injuries had any charring or blackening marks around their margins which showed that the shots must have been fired from a long range.
5. Complainant Kadirdino has stated in his evidence that he is kamdar of Rais Ghulam Rasool Lakho that the appellant who came from the opposite direction challenged him and straightaway fired a pistol shot which hit him on the right side chest. The appellant then loaded the pistol and fired a second shot which hit him on the arm. He raised cries on which Allan came running. The appellant then ran away with his pistol. The complainant had stated in the F. I. R. That the first shot fired by the appellant tad hit him on the chest, right wrist and face and the second shot had missed him. The complainant has then stated in his evidence that he had been fired at from a distance of 7 or 8 paces though the medical evidence is to the effect that the firing was from a long range and the injuries were only skin deep. The complainant has admitted that village of Jumo Kalhoro was at a call's distance and the village of Noor Baheejo was 500 to 600 away but no one appeared from any of these villages nor heard any shots. On the other band P. W. Allan was the only eye-witness of the incident. Allan was hart of Ismail Lakho. Ismail was brother of Ali Gohar while All Gohar was nephew of his Zamindar Ghulam Rasool and Ali Gohar had accompanied him to the police station for getting the case registered. According to the complainant Allan came by the Distributor while according to Allan, he was working at his field when he heard pistol shot and he crossed Sadawah and came on the other side of the canal to witness the incident. It has come in evidence that Sadawah was 8 feet deep and about 50 paces wide 1 that there was water in Sadawah at that time. That being so, it is hard to believe that P. W. Allan after hearing the shot would walk through the field upto the band, get down the hand into the water, wade through the water and then come up over the opposite side of the band which was 8 feet high.
6. The complainant and his witness P. W. Allan are thus connected and there is recorded enmity between the parties. The complainant had admitted that the appellant had forcibly occupied Bhada land claimed by him. About one year before the incident the appellant had filed a case against him and his brother and nephew. The mother of the appellant had filed two cases against him; his sister's son Azam had filed a case against his father and six others; there were 107, Cr. P. C.
Proceedings between the two parties. The appellant was also challenged in a theft case filed against him by Ali Gohar and Noor Ahmed Lakho.
7. P. W. Allan has stated that he was working in his land adjacent to Sadawah, when he beards the report of firing. This is in conflict with the version of the complainant that at that time Allan was going along the Jalbani Distributory. P. W. Allan was examined by the police on the next day. Allan has admitted that there was water in Sadawah and he had crossed Sadawah through water and challenged the appellant after climbing ' over the other bank from the bed of Sadawah. That no one else came one the cries excepting himself.
8. Thus apart from Allan there is no witness to corroborate the complainant and even Khada Buz said to have come afterwards has been dropped. Allan is the hart of Ismail Lakho brother of All Gohar and All Gohar has already implicated the appellant in a theft case and taken the complainant to the police for getting this case registered.
9. The incident of arrest of the appellant and recovery of the country. Made pistol and cartridges from his person is also doubtful. A. S. I Ghulam Haider has stated that he received spy information that the appellant would pars on Dhouron Bridge at night. He and the police party, therefore, proceeded to that bridge and waited for him when the appellant appeared at about 2-00 a.m. The complaint which the A. S had registered on the other hand showed that they had gone to the place on that night In search of absconders generally and it has not been mentioned that any spy information had been received regarding the appellant paving by that bridge. The incident is said to have occurred on 18th December 1973. The appellant must have known that a case had been registered against him. He could not, therefore, have taken the weapon of offence along with himself and passed that bridge knowing that the police would be after him. If this had been the weapon used in the offence the police would have sent it along with the crime cartridges said to be lying at the scene to the ballistic expert. But this was not done. The story regarding recovery of the weapon of offence and arrest of the appellant during nakabandl operation therefore, appears to be entirely doubtful.
10. Thus the entire evidence against the appellant consists of the oral testimony of complainant Kadirdino and Allan. Both these witnesses are interested and had motive to implicate the appellant falsely as there were number of cases and disputes between the parties. The evidence of these two witnesses is contradictory on material points and presence of Allan at the scene is highly improbable as Allan could not have crossed Sadawah which was 50 paces wide and 8 feet deep with water in it. According to the complainant Allan came over Ja!Bani Distributory and not through the canal. The only P. W. Examined to corroborate this witness is All Gobar who had already filed a theft case against the appellant. In the F. I. R. Lodged by Azam Lakho on 7-11-1970 Gullo son of Chutto was one of the accused while complainant Kadirdino was cited as a prosecution witness. In another case sent up on 27-5-1974 against Gullo son of Chutto, All Gohar was the complainant. In this case also the parties and witnesses are the lame. The medical evidence is in conflict with the so-called ocular evidence, and such evidence cannot be relied upon unless there is strong corroboration.
11. It has also been argued by the learned counsel on behalf of the appellant that admittedly the shots were fired from long range, from a country-made pistol of .12 bore with small pellets and only skin-deep injuries had been caused. It cannot, therefore, be said that the person who fired the shots bad the intention to commit murder of the complainant. That there were reported decisions that under these circumstances the offence would fall under section 324, P. P. C. Only. However, this aspect of the case need not be considered when the incident itself has not been sufficiently established beyond doubt.
12. In the result both the appeals are accepted and the appellant 614 given benefit of reasonable doubt and acquitted in the two cases. He may be set at liberty, if not required in any other case.