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Criminal Appeal No. 542 of 1972, decided on 10th July 1973.

‑‑‑ S. 307‑Murderous assault‑Evidence, appreciation of‑Con1 plainant making improvements on first information report lodged by him by particularizing accused as author of injuries‑Nothing tea ascertain that complainant was hit by shot fired by accused‑ Accused given benefit of doubt and acquitted in circumstances [Evidence‑‑Benefit of doubt.]

Ch. Eitizaz Husain for Appellant.

Aftab Gul for A.‑G. Punjab for the State.

Date of hearing : 6th July 1974.

This judgment will dispose of Criminal Appeal No. 542 of 1972 and Criminal Revision No. 864 of 1972, arising from the judgment dated 22nd June, 1972, of the Sessions Judge, Mianwali, whereby he convicted Muhammad Zaman appellant aged 22/25 years under section 307, P. P. C. and sentenced him to five years R. I and a fine of Rs. 1,000 for making an attempt can the life of Ghulam Habib P. W. on the 5th of July, 1968, at about 7.00 a, m. in village Sohrabwala which is three mites from the Police Station Saddar Mianwali ; and acquitted the appellant's brother, Abdur Rehman accused, of the same charge. The Criminal Revision is directed against the said acquittal and the appellant challenges his conviction and sentence by this appeal.

2. The prosecution case is as follows :‑

A few months before the alleged occurrence, Muhammad Zaman appellant had outraged tine modesty of a girl who happens to be his first cousin the father of one being the brother of the mother of the other. Muhammad Ismail P. W. is the brother of the girl. That incident created bad blood between the families of Muhammad Zaman and Muhammad Ismail and Muhammad Ismail is said to have vowed to retaliate. He was employed in the E. M. E, Corps and had come to Sohrabwala on the 4th of July, .1968. The next day at about 7.00 a. m. when Muhammad Ismail was proceeding towards the fields to answer the call of nature, the appellant and his brother Abdur Rehman armed with a revolver and a rifle respectively challenged him and also opened fire. Muhammad Ismail P. W., however, took shelter behind a wall and ran; into his own house unhurt. The two brothers continued firing at the house of Muhammad Ismail P. W. When the firing stopped, his mother set out to report the incident to the Union Council. But she was murdered. Her cries brought Muhammad Ismail and his sisters out into the open again. It is, however, said that the assailants tried to murder Muhammad Ismail too but he again managed to escape unhurt. After sometime Muhammad Ismail P. W. ventured out, found her mother dead and also came across Ghulam Habib P. W. who told him that he had been injured by the shots fired by the appellant and his brother. Then Muhammad Ismail and Ghulam Habib P. W. proceeded towards the police station to lodge a report there but met the S. H. O. on the way and reported the whole incident to him. It was the statement of Muhammad Ismail P. W. that the S. H. O. recorded. It is the first information report in the case.

The case pertaining to the murder of the mother of Muhammad Ismail P. VV. was tried separately. However, the first information report in both the cases is the same.

Ghulam Habib P. W. was examined medically and found to have sustained four fire‑arm wounds of the following description : ‑

(1) A lacerated fire‑arm wound x 1/8' on the anterior aspect of the right ear, just above the lobule of the pinna. It had inverted margins and was the wound of entry.

(2) A lacerated fire‑arm wound of exit of No.1 on posterior aspect of right pinna lobule. It was 1/6' x '.

(3) A fire‑arm wound of entry 1/6' x 1/6' en the neck just posterior to the right pinna lobule.

(4) A fire‑arm wound of exit of No 3, 1/3' x 1/3' on the posterior aspect of the neck, 3' posterior from the lobule of the right ear.

In the opinion of the doctor, who examined him, all the four wounds had been caused by a single pellet. The injuries were simple and Ghulam Habib P. W. could walk along with Muhammad Ismail P. W. towards the police station even after sustaining the injuries.

The appellant denied any involvement in the commission of the offence. But from the suggestions made to the witnesses in their cross -examination, the defence case seems to be that on the fateful day there happened something in the morning which provoked a general indiscriminate firing in the village in the course of which a stray pellet hit Ghulam Habib P. W. and caused him injuries on his right ear and the right side of his neck.

3. The prosecution has examined only two persons as the witnesses of the occurrence, namely, Muhammad Ismail (P. W. 6) and Ghulam Habib (P. W. 7). The former by his own admission did not and could not notice how Ghulam Habib P. W. came by his injuries. Thus Ghulam Habib is the sole eye‑witness on record.

It is true that in a case like this, the testimony of the injured witness corroborated by medical evidence should normally be sufficient to bring home to the accused the charge of causing hurt or of making a murderous assault. But, in the present case, the circumstances are such as create a great doubt about the veracity of Ghulam Habib's testimony. While appearing as a witness, he stated that Muhammad Zaman appellant had called him a sympathiser of Muhammad Ismail P. W. before firing at him, But in the first information report which was lodged in the presence of this witness there is no mention of the fact that he had been fired upon because he was a sympathiser of Muhammad Ismail P. W. or that it was particularly the shot fired by Muhammad Zaman appellant that hit Ghulam Habib P. W. This is a clear improvement on the first information report made obviously with the intention of putting the blame squarely on the appellant to the exclusion of his brother. The reason for this attempt is not far to seek. It was the appellant and not his brother who had insulted the sister of Muhammad Ismail P. W. The relations were no doubt strained between the appellant and Muhammad Ismail P. W., who belong to the two branches of the same family, but Ghulam Habib P. W., being merely a barber, was not concerned with the family dispute mentioned above.

I am, therefore, of the view that no satisfactory reason has been shown for the alleged attempt on the life of Ghulam Habib P. W. It is in evidence that the appellant and his brother had opened fire on Muhammad Ismail P. W. from a sufficiently close distance. Yet he was not hit. Then they continued firing for 3 to 10 minutes allegedly at the house of Muhammad Ismail P. W. Yet no bullet or pellet marks were found on the walls of the house. All this indicates that the accused brothers neither intended to injure Muhammad Ismail P. W. nor to do any harm to his house. The inescapable conclusion .is that they fired in the air merely to frighten Muhammad Ismail P. W, who had sworn to avenge the affront given to his sister by molesting a sister of the accused.

So, the question arises as to why the accused should hit and injure Ghulam Habib P. W. when they were cautious enough to avoid injuring Muhammad Ismail P. W. In my opinion the only explanation of the injuries sustained by Ghulam Habib P. W. is that he was hit unintentionally by a stray bullet or pellet. There is, however, no evidence can record to sup port the suggestion that there was a general firing in the village at the time Ghulam Habib P. V. was injured. It is, therefore, possible that he was hit by one of the shots fired either by the appellant or his brother Abdur Rehman accused. Since in my view, there was no intention on the part of i:6er to injure Ghulam Habib P. W., section 34, P. P. C. cannot be applied.

Only the person directly responsible for the injuries could be held liable if it were possible to ascertain who he was. Although Muhammad Zaman appellant has been named specifically by Ghulam Habib P. W. in his statement before the Court, this particularisation cannot be trusted because it is inconsistent with the first information report made in the presence of Ghulam Habib P. W. Therefore, there is a reasonable doubt as to the guilt of the appellant, the benefit of which roust go to him.

The learned Sessions Judge observed, while convicting the appellant, that he had absconded after the incident and his abscondence remained unexplained. But this circumstance cannot be used against the appellant for more than one reason. Firstly, it was not put to him in his examination under section 342, Cr. P. C. Secondly, the appellant was arrested on the 26th July, 1968, from his own house. His arrest from his own house seems to be inconsistent with the alleged abscondance. The prosecution never tried to explain this inconsistency. The appellant was a Government employee and, therefore, it should not have been difficult for the police to arrest him. There is nothing on record to show that he remained absent from duty as well. At any rate, there was also a charge of murder against him and if he had really absconded that might have been in connection with that offence and not necessarily because he had made an abortive attempt on the life of Ghulam Habib P. W.

5. In short for the reasons given above, I am of the opinion that the case against the appellant is not free from reasonable doubt.

6. I accordingly accept the appeal, set aside the conviction and sentence and acquit the appellant,

7. The case against the acquitted accused Abdur Rehman being the same as that against Muhammad Zaman appellant excepting the fact that a rifle was recovered from his possession which matched with a missed cartridge found at the scene of occurrence which circumstance alone is not sufficient to show that re had the intention to cause any harm to Ghulam Habib P. W., I hold that he has been rightly acquitted by the learned trial Judge.

8. Therefore, the revision petition is dismissed.

Appeal allowed.

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