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Criminal Appeal No. 97 of 1966, decided on 24^th July 1968.

S. 307‑--Eye‑witnesses categorically stating that they did not actually see accused firing at them‑No gun recovered from, or at instance of, accused Conviction of accused, held, no maintainable.

Azizullah K. Shaikh for Appellant.

Nooruddin Sarki for A. A. G. for the State.

Date of hearing: 24th July 1968.

Shah Nawaz (43), who was tried along with one other person with whom we are not concerned in this appeal, was convicted under section 307, P. P. C. and was sentenced to undergo rigorous imprisonment for a period of five years and a fine, of Rs. 100 or in default of payment thereof to suffer rigorous imprisonment for a further period of two months. He was also tried and convicted for the offence under section 13(d) of the West Pakistan Arms Ordinance to undergo rigorous imprisonment for two months. The sentences of imprisonment were ordered to run concurrently. Shah Nawaz appealed questioning the correctness of the convictions and the sentences.

2. The facts of the case, shortly stated, are that on the night intervening the 27th and 28th of July 1965, a pair of bullocks belonging to Tillu was stolen from in front of his house. Tillu found the foot‑prints of four persons going along the tracks of the animals. He called Ali Hassan Jakhrani, Ali Hassan Mari, Hothi and Mavaran who followed the tracks. The tracks led to the house of Shah Nawaz appellant and Gosho Punhoon, Shah Nawaz, Gosho and others were sitting there. Tillu told them to account for the foot‑prints. Shah Nawaz and others denied that the tracks of the animals actually led to their houses. There was exchange of hot words between Shah Nawaz and others on one side and Tillu and his companions on the other. Tillu and his companions then left the place. They had gone to a short distance when there was firing from behind resulting in injuries to, Ali Hassan Mari and Ali Hassan Jakhrani. Bago and Gosho came to the spot armed with hatchets: They pushed Tillu and others. Malook and Piaro Mulghani came there armed with lathis: They abused Tillu and ethers and on their entreaties they left in the direction of their houses. The injured were removed to the village in, the first instance. Tillu went to Saifal Khan Jakhrani and apprised him of what had happened. He also narrated the details .of the, incident to Qutub Din Khan who advised him to lodge a. report.

3. The report regarding the occurrence was lodged by Tillu at 8‑30 a.m. on the 28th of July 1965 at Police Station Taju Dero at a distance of ten miles to the north of the scene of the crime and was taken down by Head Gonstable Manik Khan P. W. 5. On the 28th of July 1965 at 11 a.m. H. C. Ghulam Sarwar P. W. 9 received information that Ali Hassan Mari and Ali Hassan Jakhrani had been brought to Civil Hospital, Jacobabad in an injured condition. He went there and prepared their injury sheets. The investigation was henceforth taken over by Sub‑inspector Ali Gul Shah P. W. 11 who arrested the appellant on the 2nd of October 1965.

4. Dr. Abdul Ghani Shah P. W. 7 examined Ali Hassan Mari and Ali Hassan Jakhrani P. Ws. on the 27th of July 1965 at 11‑45 p.m. separately and found the following injuries on their persons each:‑

Ali Hassan Mari P. W. had:

(1) A lacerated type of penetrating wound " x " x skin deep on the lower part of scapula transverse just near the lateral border on the left side.

(2) A lacerated type of penetrating wound " x " x skin deep on axilla on the posterior fold.

(3) An abrasion " x 1/8" on the back of chest at the level of 9th intercostal space just left to the spinal column.

(4) A lacerated wound " x 1/8" x " on the upper part of the back of the left upper arm.

Injuries were simple in nature. Injuries Nos. 1 and 2 were due to discharge from some firearm like a gun and the others were due to blunt weapon like lathi.

Ali Hassan Jakhrani P. W. had a lacerated type of penetrating wound " in diameter on the back of left thigh just above the popliteal fossa. The injury was simple in nature and was caused by some firearm like a gun.

5. The defence of the appellant was a bare denial and he did not produce any evidence in his defence.

6. The case against the appellant rests on the evidence of Tillu P. W. 1, Ali Hasan Jakhrani P. W. 2, Hothi P. W. 3, Mavaran P. W. 4 and Ali Hasan Mari P. W. 6. The gist of their evidence is that they followed the tracks of the stolen animals to the house of Shah Nawazartd Gosho who were present there with others: They asked Shah Nawaz and others to account for the animals but they refused. There was exchange of hot words between the parties. Tillu and others started back towards their houses. There was firing from behind resulting in injuries to Ali Hassan Mari and Ali Hassan Jakhrani. Tillu in his report to the police which he made on the following morning accused Punhoon, Shah Nawaz and Gulab Mulghani for firing at them with shotguns resulting in injuries to Ali Hassan Mari and Ali Hassan Jakhrani. He, also implicated Gosho and Bago for having come to the spot armed with hatchets. Tillu continued that Bago and Gosho pushed them and Tillu and his companions pushed Bago and Gosho. Tillu also mentioned in his report to the police that Malook and Piaro Mulghani came running towards them armed with lathis and abused them. The police sent up Shah Nawaz and Gosho for trial. It is not clear on the record whether Punhoon and Gulab, who were also alleged to have fired with shotguns at Tillu and others, were got discharged or were not actually challaned. Tillu alone stated, at the trial, that he saw Shah Nawaz appellant firing with the gun at them. He admitted that he did not know Shah Nawaz. He also admitted that the appellant lodged a counter‑case against him and others. I find from the statement of Tillu that Ali Hassan, Hothi and Mavaran are his cousins. Ali Hassan Jakhrani said in his statement that someone fired at there from behind resulting in injuries to him and Ali Hassan Mari. The witness made a catego rical statement that he did not see who actually fired at them. Ali Hassan Jakhrani was declared hostile and was cross -examined. He denied having said in his statement recorded under section 164, Cr. P. C. that Shah Nawaz appellant fired and the shots hit him and Ali Hassan Mari. To the same effect is the evidence of Hothi, Mavaran and Ali Hassan Mari. They did not name the appellant as the person responsible for the firing resulting in injuries to Ali Hassan Mari and Ali Hassan Jakhrani. They were confronted with their statements under section 164, Cr. P. C. but the statements recorded under section 161, Cr. P. C. were not formally got proved on the record by the Magistrate and the result is that the conviction cannot be based on what the witnesses had said in their statements under section 164, Cr. P. C. It appears that the statements under section 164, Cr. P. C. were recorded by Mr. Aziz‑ur‑Rehman Zafar Ali Sheikh. Civil Judge and section 30 Magistrate, Jacobabad, who eventually tried Shah Nawaz and his co‑accused. The learned Magistrate proceeded to record the conviction considering that the eye‑witnesses had resiled from their statements having arrived at a compromise with Shah Nawaz appellant. It seems that what the eye‑witnesses stated at the trial, was true because Qutub Din who is the landlord of Tillu, deposed, as the 8th witness for the prosecution that Tillu his Hari, came to him and told him that Ali Hassan Mari and Ali Hassan Jakhrani had received gun‑shot injuries. He did not tell Qutab Din that they were injured as a result of gunfire by Shah Nawaz appellant. In fact, Tillu did not disclose to Qutab Din the names of the accused. In view of the categorical statements made by the eye‑witnesses that they did not actually see the appellant firing at them, it is not possible to maintain the conviction of the appellant under section 307, P. P. C. No gun was recovered in this case and although Shah Nawaz was challaned under section 13(d) of the West Pakistan Arms Ordinance but no question as regards possession of a shotgun without a license was put to him in his examination under section 342, Cr. P. C:

7. The result is that the conviction of Shah Nawaz even for the offence under section 13(d) of the West Pakistan Arms Ordinance cannot be sustained. I would, therefore, accept the appeal, set aside the convictions and the sentences passed on Shah Nawaz and order him to be acquitted. The sentence of fine is also remitted. The fine, if paid, shall be refunded to him. Shah Nawaz appellant is on bail and his bail bond shall stand cancelled. Needless to add that the learned‑ counsel, who appeared on behalf of the State, conceded frankly and rightly too that it was not possible to support the conviction.

Appeal accepted.

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