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Criminal Revision No. 396 of 1973, decided on 17th October 1973.

‑‑ S. 307‑Attempt to murder‑Benefit of doubt‑Witness, credibility of‑Eye‑witness materially changing initial case of prosecution and giving an account inconsistent with testimony of injured prosecution witnesses‑One injured person not cited as witness by prosecution but when summoned as defence witne3s demolishing entire prosecution case and version put forth by him not challenged by prosecution- Embellishments and suppression of facts by witnesses, held, impair their credibility‑Accused given benefit of doubt and acquitted, in circum stances.‑[Benefit of doubt‑Witness].

Usman Khan's case P L D 1969 S C 293 ref.

Mian Nazir Akhtar for Petitioner.

Akhtar Shabbir for A. G. for the State.

Date of hearing : 17th October 1973.

Muhammad Ishaq petitioner was tried alongwith Walayat on a charge under section 307/34, P. P. C. resulting in his conviction with a sentence of rigorous imprisonment for three years, while his co‑accused was acquitted. His appeal was dismissed by the Additional Sessions Judge, Rawalpindi, but his sentence was reduced to rigorous imprisonment for one year. He had con sequently approached this Court with a petition under section 439, Cr. P. C. questioning the correctness of these orders, which was admitted by me to a regular hearing on 14th June 1972. The petitioner later filed an application for an early hearing of the case which was placed before my learned brother Muhammad Afzal Cheema, J. (as he then was) who was pleased to issue a notice to him to show cause why his sentence should not be enhanced and directed the office to fix the case before me in July 1973. It is, however, placed before me today.

2. The prosecution case in brief is that a month and a half before this occurrence which took place on 16th January 1970 Muhammad Akram, a brother of Masud P. W. had given Rs. 5 to Muhammad Ishaq petitioner for purchasing a pair of nylon socks, but he did not comply and misappropriated this amount resulting in an altercation between them in the presence of Mansab Khan, grocer who separated them and effected a compromise between them.

3. It was alleged that Muhammad Ishaq petitioner took it to heart and with a view to avenge this insult attacked Masud P. W. in the hotel of Chulam Mustafa P. W. at 10‑00 p. m. on the eventful evening. He was carrying a gun at that time and was accompanied by Walayat (the acquitted accused) who exhorted him to kill Masud P. W. in the presence of Haq Nawaz, Safdar, Haider Zaman P. Ws. and Muhammad Ashraf (P. W. 1). He fired three successive shots on him which Masud P. W. ducked by taking shelter first behind Haq Nawaz P. W., then behind Safdar P. W. and lastly behind Muhammad Ashraf (P. W. 1) each of whom was injured while he (Masud P. W.) escaped unhurt. A squad of Military Police was attracted to the spot by the reports of these gunshots from the nearby Ordnance Factory who removed the three injured persons to the hospital and on receipt of an information about it in his gusht in that vicinity the A. S. I. Bashir Ahmad of Police Station of Wall Cantt. came there and recorded the statement (Exh. P. A.) of Safdar P. W. about this occurrence which forms the basis of the F. I. R. in this case.

4. Dr. Masud Pervez (P. W. 13) examined Muhammad Ashraf on 17th January 1970 at about 12‑30 a. m. and found one wound 3" x 2" on the inner side of the right thigh. The mouth of the wound was bruised, and when the wound opened it was found 5 deep. Muscles of the right thigh was wounded. The injury was grievous.

On the same day he examined Muhammad Safdar P. W. and found few pellets penetrated into the left shoulder. No harm was done to any bone. The wound of the pellets were fresh. The injury was simple.

On the same day he examined Haq Nawaz and found many pellets inside the right side of the chest and also inside right side of the shoulder. A few pellets also penetrated into the right side of the chest. The injury was grievous.

5. In addition to the above detailed medical evidence the prosecution had relied on the testimony of Muhammad Safdar (P. W. 1), Haq Nawaz (P. W. 3) the two owners of the hotel, Haider Zaman (P. W. 4) another visitor in this hotel and aforesaid Masud Khan (P. W. 5) about the ocular account of the occurrence, while Abdul Khaliq (P. W. 6), Muhammad Ashraf (P. W. 10) and Ahmad Khan (P. W. 11) were examined to prove the re coveries of blood‑stained earth and three empties from the spot. The third injured person Muhammad Ashraf and a neighbouring shopkeeper Akbar Khan appeared in defence.

6. The two Courts below accepted the prosecution evidence And held Muhammad Ishaq petitioner guilty of this murderous assault on Masud Khan, but giving the benefit of doubt to Walayat (his co‑accused) acquitted him.

This concurrent finding has been assailed before me on the ground of misappreciation of the evidence and on being taken through the record I am inclined to agree with this contention of the learned counsel for the petitioner on the short ground that three persons Haq Nawaz P. W. 3, Safdar P. W. 1 and Muhammad Ashraf D. W. 1 were injured during this occurrence, but as the last named witness was not prepared to support the prosecution case from the very outset he was not cited as a prosecution witness and when produced as D. W. 1 he belied the entire case of the prosecution but not a single question was put to him to challenge the correctness of the version put forth by him. This factor would lend grave doubts to the prosecution case, the benefit of which could not be denied to the petitioner. Reliance was placed on Usman Khan's case (P L D 1969 S C 293), and when confronted with this situation the learned State counsel frankly conceded this point. Even two other eye witnesses namely, Haider Zaman (P. W. 4) and Masood Khan (P. W. 5) had materially changed the initial case of the prosecution and given such an account of the occurrence which was quite inconsistent with the testimony of the two injured witnesses Safdar and Haq Nawaz. Haider Zaman (P. W. 4) denied having seen the petitioner firing any shot on these injured persons. He was however declared hostile and cross‑examined by the P. S. I, but to no avail for the prosecution while Masood Khan (P. W. 5) had effected some material variations in the story and had also made some concessions in favour of the petitioner but he was not at all cross‑examined by the P. S. I. To demolish the concessions and the variations introduced by him in his evidence, According to the last‑named witness all of them had remained inside the hotel when Muhammad Ishaq petitioner arrived all alone and had given the lalkara which was originally attributed to Walayat the, acquitted accused and on this lalkara Haq Nawaz P. W. alone went outside and was shot at. On this Masood Khan went out and asked Muhammad Ishaq petitioner to desist when Safdar P. W. followed him and was hit by the second shot. Masood Khan P. W. did not say at all that in fact he was Vie target of this assail but he saved himself by ducking these shots when Haq Nawaz and Safdar were injured. He had thereby changed the sequence and manner of this assault and even did not mention the presence of Walayat much less any lalkara by him. He rather conceded that Muhammad Ishaq petitioner came there all alone. Abdul Khaliq P. W. 6, the farther of Ghulam Mustafa P. W. 2 had altogether changed the place of this occurrence by deposing that be found the three injured persons lying inside the hotel when he went there on hearing the gun‑shots. He also added that if any of the assailants belonged to his village, he would have certainly identified them and admitted that Muhammad Ishaq petitioner was known to him, as he belonged to his village. He however, did not name him as one of the assailants.

7. The prosecution witnesses including the two injured persons had also introduced the arrival of one Makhan Khan a maternal uncle of Ishaq petitioner reprimanding the latter for using his gun which factor was not at all mentioned in the F. I. R. They had likewise changed the sequence of the victims of these shots and suppressed the presence of Ashraf (D. W. 1) who had also fallen a prey to one of these shots. This introduction of new material was a crude attempt to connect the gun with the petitioner and the name of Ashraf was suppressed to damage the defence case. The accumu lative effect of all these variations, embellishments and suppressions have gone a long way to impair their credibility which has lent further doubts to the prosecution case, the benefit of which cannot be denied to the petitioned and accepting this petition, set aside his conviction and sentence in this case.

7. As a result, the notice issued to the petitioner for enhancement of his sentence shall also stand discharged.

Petition allowed.

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