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Criminal Revision No. 74 of 1982, heard on 14th September, 1982.

-----S.326-Evidence, appreciation of-Benefit of doubt-Eye witnesses not in a position to correctly identify assailants upon a momentary glimpse in dim moonlight from a distance of twenty feet-Complainant party having a long-standing enmity with a relative of petitioner and version of eve-witnesses receiving no corroboration from an unimpeachable source-Acquittal of co. accused based on same evidence, yet not challenged either by State or complainant-Investigating Officer also not produced at trial, resulting in a serious omission on part of prosecution--Prosecution, held, failed to prove its case against petitioner beyond reasonable doubt-Conviction and sentence set aside, in circumstances. [Benefit of doubt-Evidence].

Haji Muhammad Anwar Buttar for Petitioner.

Abdul Fateh for the State.

Date of hearing : 14th September, 1982.

Abdul Ghafoor petitioner and his brother Muhammad Ashraf were tried under sections 307/34, 326/34 and 382/511, P.P.C., by Mian Riaz Amin, Magistrate Section 30, Sialkot, Who, by his judgment dated 18th November, 1981, convicted Abdul Ghafoor petitioner under section 326, P. P. C. and sentenced him to R. I. for four years and a fine of Rs. 5,000 or in default in the payment thereof to undergo further R. 1. for nine months. Co-accused Muhammad Ashraf was, however, acquitted of the charge. Abdul Ghafoor petitioner challenged his conviction and sentence in the Sessions Court, Sialkot, but his appeal was dismissed on 3rd January, 1982. He has come up in revision to question the correct ness and propriety of the aforesaid orders.

2. The brief facts of the prosecution case are that on the night between 7/8th June, 1976, Bashir Ahmad complainant and his brother Ghulam Nabi were sleeping in their thrashing floor to keep watch over the heap of wheat. At about 11/12 p.m. Abdul Ghafoor petitioner and his brother Muhammad Ashraf came there and stood near the heap of wheat. Bashir Ahmad and Ghulam Nabi woke up and tried to appre hend them, upon which Abdul Ghafoor petitioner fired his Carbine at Ghulam Nabi causing injury on his right eye and left thigh. After the occurrence both the accused ran away from the spot. Naser Din and Nazir Ahmad who were sleeping in their Havelis woke up on hearing the alarm of Bashir Ahmad and Ghulam Nabi and rushed to the spot. On the way they saw the petitioner and his co-accused running away.

3. Ghulam Nabi P.W. was medically examined on the following morning. There was a pellet wound on the centre of cornea with perforation of the eye-ball. There was loss of vision. There was another pellet wound on the left thigh in the middle. The first mentioned injury was grievous in nature and the other was simple. Both the injuries had been caused by fire-arm.

4. The petitioner pleaded not guilty to the charge and denied the prosecution allegation against him. Four witnesses were examined in defence.

5. The learned counsel for the petitioner contended that the eye-witnesses were not in a position to identify the assailants as the occur rence took place at about mid-night. He further submitted that both the eye-witnesses are unreliable and inimically disposed of towards the accused, therefore, their uncorroborated evidence was not sufficient to warrant the conviction. He further argued that the petitioner was seriously prejudiced in his defence as the Investigating Officer was not examined by the prosecution.

6. The occurrence took place on the night between 7/8th June, 1976 which corresponded with 8th of the lunar month. On the said night the moon set time at Lahore was 0039 hours. According to the F. I. R the occurrence took place at 11/12 p.m. f. e. about 1/2 to 1 hours before the moon set time. The case of the prosecution is that the petitioner fired only one shot which caused two injuries, one on the right eye and the other on the left thigh. The location of injuries or to put it more precisely the spread of pellets shows that the weapon was fired from sufficient distance. Dr. Nazir Ahmad who examined the injured state: that both the injuries could not be caused by a shot fired from a distance of 2;3 feet but could be caused if the weapon was fired from a distance of 20 feet. Bashir complainant admitted that there was no lantern at the spot and Naser Din P. W. stated that there was no light. In the circum stances, it cannot be said with any degree of certainty that the eye witnesses were in a position to correctly identify the assailants upon a momentary glimpse in dim moonlight from a distance of twenty feet.

7. The case of the petitioner before the trial Court was that he was falsely implicated due to enmity. In cross-examination the complainant admitted that be and his brothers were facing trial under section 324, P. P. C. on the allegations that they had injured Qudrat Ullah and others who were accused in a cross-case under section 307, P. P. C. He, however, denied that the wife of Qudrat Ullah was the cousin of the petitioner but again said that he had no knowledge about her relationship with the petitioner. Nazir Ahmad (P. W. 3) who is the first cousin of the complainant, however, admitted that the wife of Qudrat Ullah son of Ghulam Qadir was the first cousin of the accused persons. Injured P.W. Ghulam Nabi admitted that there was long-standing enmity between the complainant party and the sons of Ghulam Qadir. It is thus evident that the petitioner is related to Qudrat Ullah who had enmity with the complainant party. The observation of the learned Sessions Judge that no enmity was proved and that the complainant party had denied that the wife of Qudrat Ullah was a relative of Abdul Ghafur, is not supported by the evidence on the record. It is pertinent to note that Bashu Ahmad complainant and Ghulam Nabi inured denied the suggestion that their father was murdered but their brother Naser Din (P. W 2) admitted this fact. All of them, however, denied the suggestion that the father of the petitioner was challaned in that murder case. Along with the petition a copy of F. I. R No. 22 dated 1st July, 1939 has been filed to show that Sadiq, father of the petitioner, was an accused in the murder case of the father of the complainant, but this document cannot be read as evidence at this stage. Anyhow, the fact remains that Bashir Ahmad and Ghulam Nabi dented a patent fact like the murder of their father. In that view of the matter when there is evidence on the record that the complainant party has long-standing enmity with a relative of the petitioner, the evidence of the eye-witnesses would require corroboration from an unimpeachable source, but the same is not available in this case.

It need be mentioned that the evidence of the Waj-Takkar witnesses, namely, Naser Din and Nazir Ahmad, has been rejected by the learned Sessions Judge and he has given cogent reasons for discarding the same.

8. It is also important to note that the evidence of the eye-witnesses against Muhammad Ashraf co-accused was rejected and he was acquitted. The evidence of the defence witnesses, namely, Khair Din and Ismail that at the time of occurrence aforesaid co-accused was with Khair Din DW, was accepted by the learned trial Magistrate. This circumstance throws a serious doubt on the entire prosecution story. It will not be out of place to mention that the acquittal of Muhammad Ashraf was not challenged either by the State or by the complainant.

The investigating officers, namely Bashir Hussain and Ramzan Ali Shah who figure as P. Ws in the Calender, were not produced and their non-examination is a serious omission on the part of the prosecution.

Keeping in view all the circumstances of the case, I feel that the prosecution has not been able to prove its case against the petitioner beyond a reasonable doubt. I, therefore, allow this petition, set aside the conviction and sentence of the petitioner and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.

Revision allowed.

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