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Criminal Appeal No. 332 of 1975, decided on 10th April, 1985.

‑‑‑S. 307/34‑‑Attempt to murder‑‑Complainant (injured prosecution witness) knowing accused but not naming him in F.I.R. as one of assailants‑‑Complainant at trial stage naming accused as one accompanying accused at time of occurrence‑‑Such improvement being material, held, affected merits of case against accused‑‑Evidence showing accused being empty‑handed‑‑Accused not related to co‑accused and not having any motive against injured prosecution witness‑‑Accused not armed with weapon‑‑Case against accused found to be false‑‑Accused acquitted in circumstances.

‑‑‑S. 307/34‑‑Attempt to murder‑‑Complainant/injured prosecution witness, having a motive to implicate accused in case‑‑Accused having no motive to make murderous assault on injured prosecution witness‑ Complainant not being able to identify his assailants during night‑ Blood‑stained earth not recovered from spot‑‑Complainant appearing to be injured when he was sleeping inside room and as such was not able to see his assailants‑‑Other witnesses reaching spot after fire‑‑Accused given benefit of doubt and acquitted in circumstances.

Ch. Abid Ali Butter for Appellants.

Azmat Dad Khan, for A.‑G. for the State.

Date of hearing: 9th April, 1985.

This is an appeal by Muhammad Hussain and Muhammad Yaqoob against their conviction by a Magistrate Section 30, Narowal, District Sialkot, vide judgment, dated 31‑3‑1975. They both were sentenced to seven years' R.I. and a fine of Rs.1,000 or in default six months' R.I. each under section 307/34, P.P.C.

2. The occurrence in this case took place on 6‑11‑1971 at 11‑30 p.m. The F.I.R. was recorded at Police Station Qila Sobha Singh, District Sialkot, on 7‑1.1‑1971, at 9‑35 a.m. on the statement of Allah Ditta P.W.1 (injured). It was stated by him that his daughter Mst. Sughran Bibi had gone to make purchases from the shop of Muhammad Hussain accused about 15/16 days before the occurrence. He cut indecent jokes with her. She complained to him as a result of which there was quarrel between him (Allah Ditta P.W.) and Muhammad Hussain accused. The matter was settled on the intervention of the respectables. He further alleged in the F.I.R. that at the time of occurrence, he was sleeping in a room in his house. He saw two persons entering the room. He identified Muhammad Hussain but could not identify the other person. He raised alarm. At this both the accused started running back. He gave them a chase and was able to apprehend the unknown accused. The said accused managed to free himself. Muhammad Hussain fired injuring Allah Ditta on his chest. The fire shot attracted his son, daughter, wife and neighbours. Allah Ditta was taken to the hospital where his statement Exh. P.A. was recorded by A. S. I. Hafeez Mir on the basis of which formal F.I.R. Exh. P.A/1 was recorded by A.S.I. Bashir Ahmad P.W.11.

3. The prosecution examined 11 witnesses in all. Allah Ditta P.W.1 supported the prosecution case as stated by him in the F.I.R. He, however, stated that Muhammad Hussain accused was accompanied by Yaqoob and that he had properly identified him at the spot at the time of occurrence and that he had named him in the F.I.R. He was confronted with his statement Exh. P.A. where the name of Yaqoob was not mentioned. He denied the suggestion that he had a dispute with Muhammad Hussain shop‑keeper accused; that he has falsely implicated him in this case and that in fact Sadiq or Pervaiz were the real culprits who had gone to his house to kidnap his daughter. Sadiq P.W.2, a brother of Allah Ditta, Abdul Majid P.W.3, son of the complainant, Muhammad Sharif P.W. 5, a brother of the wife of the complainant did not see the occurrence and had reached the spot after hearing the fire shot. They cannot, therefore, be held eye‑witnesses in this case. Inayat P.W.4, not related to injured, did not support the prosecution and was declared hostile. Dr. Ali Jawwad P.W.8 medically examined Allah Ditta P.W. He found a fire‑arm wound of entrance " x " on the front of right side of chest of Allah Ditta. This injury was dangerous to life, caused by fire‑arm and was fresh in duration. The investigation was held by A.S.I. Farzand Ali P.W.6.

4. I have gone through the record of this case and have heard the learned counsel for the appellant. Allah Ditta P.W. was definitely annoyed with Muhammad Hussain who had cut indecent jokes with his daughter Mst. Sughran Bibi about 15/16 days before the present occurrence. Hey knew Yaqoob accused but did not name him in the F.I.R. as one of, the two assailants. In his statement during the trial, he named Yaqoob accused as the one accompanying Muhammad Hussain accused at the time of occurrence. This improvement is material and affects the merits of the case against Yaqoob. It is in evidence that Yaqoob accused was empty‑handed. He is not related to his co‑accused Muhammad Hussain. He did not have any motive against Allah Ditta P.W. If he had to join Allah Ditta in this crime, he must have armed himself with some weapon. I, therefore, find that the case against Muhammad Yaqoob accused is false. He is, therefore, acquitted.

5. Muhammad Hussain accused is a shop‑keeper. It is alleged that he had cut indecent jokes with the daughter of Allah Ditta. Thus, it was Allah Ditta who had a motive to implicate Muhammad Hussain in the present case. Muhammad Hussain had no motive to make a murderous assault on Allah Ditta. Secondly, it appears that Allah Ditta was not able to identify his assailants. The occurrence admittedly took place during the night. The Investigating Officer did not take blood‑stained earth in possession from the spot: It appears that Allah Ditta was injured when he was sleeping inside the room and as such, was not able to see his assailants. The other witnesses reached the spot after the fire. On a perusal of the entire evidence I find that the case against Muhammad Hussain appellant was not free from doubt. I, therefore give benefit of doubt to Muhammad Hussain and acquit him of the charge.

6. Both the appellants are on bail. Their bail bonds shall stand discharged.

M.A.K.

Appeal accepted.

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