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Criminal Appeal No.24 of 1987, decided on 25th May, 1987.

---S.307--Eye-witnesses related to complainant--According to F.I.R. accused was armed with gun while witnesses stating accused to have used a pistol and this discrepancy not explained by prosecution--No corroboration forthcoming as the weapon used was not sent to Ballistic Expert--Two co-accused acquitted on benefit of doubt on same evidence--Benefit of doubt extended to accused/convict and his acquittal ordered.

A.Q. Halepota for Appellant.

Zaheer Qureshi for the State.

Date of hearing: 17th May, 1987.

Appellant Ali Sher alongwith Abdullah and Murad was tried by Sessions Judge, Sanghar for the offence punishable under section 307/34, PPC and by judgment dated 17th Feb. 1987 he acquitted co-accused Abdullah and Murad while convicted appellant All Sher and sentenced him to undergo R.I. for 4 years and to pay fire of Rs.3,000/- in default to undergo R.I. for six months more. He has further been directed to pay compensation of Rs.3,000,/- under section 544-A, Cr.P.C. to injured Mir Khan, in default to suffer R.I. six months more. Being aggrieved Ali Sher has filed this appeal under section 410, Cr.P.C.

The case of prosecution as disclosed in the FIR in brief is that on 19th October, 1985 at about 8-30 p.m. complainant Sher Khan and his brother Mir Khan were giving water to their fields when there appeared appellant Ali Sher with gun. Accused Abdullah with hatchet and Murad with Lathi. Appellant told complainant that they will take revenge of Badal from them. Thereupon he fired from his gun at them which hit Mir Khan who fell down. Thereafter complainant started running to their houses while raising cries. It is alleged that accused also fired behind them. On cries and firing Lal Muhammad and Alam came there running and saw accused. Complainant went to village Berani to take vehicle thereafter took injured to police post. On the way Mir Khan went unconscious. Complainant lodged his report at Police Post Balone of Police Station Naunabad. After usual investigation accused were challaned.

2. Prosecution in support of the case examined PW.1 Dr. Rattan Kumar Ex.7, PW.2 Sher Khan Ex.10, PW.3 injured Mir Khan Ex.12, PW.4 Alam Ex.13, PW.5, Mashir Muhammad Sadiq Ex.15, PW.6 Jumo Ex.17, and PW.7 Khuda Bux ASI Ex.19. The accused in his statement denied the allegation and not examined any witness in his defence.

The evidence against the appellant consists of ocular evidence, recovery of unlicensed pistol and motive.

3. Complainant Sher Khan and injured Mir Khan are the eye witnesses. PW Alam Khan came at the Wardat on cries and gunshot reports and saw the accused. Pistol was alleged to have been recovered. There is evidence of Doctor who examined the injured Mir Khan and produced Medical Certificate.

4. Mr. A.Q. Halepota appearing for the appellant has argued that the entire evidence is interested and there are improvement and material contradictions in the evidence of the witnesses. It is argued that incident has taken place during dark night therefore identity of accused in such circumstances is disputed. It is contended by the learned counsel that case has been filed due to enmity. He has referred to the cases reported in 1980 S C M R 225.

Mr. Zaheer Qureshi appearing for the State has supported the conviction and submitted that eye-witnesses have implicated the appellant.

5. The incident and injuries to Mir Khan are not disputed. Dr. Rattan Kumar in his evidence clearly stated that he examined injured Mir Khan and found the following injuries on his person:----

"(1) Wound of entry of fire-arm at right lateral part of abdomen, wound is directed backward and medially. It measures 2 x 3 mm.

(2) Wound of entry of fire-arm at the right lateral side of chest situated at its upper part, slightly posterior, wound was directed medially and forward. It measures 4 x 4 mm.

The injuries were caused by fire-arm and medical certificate is at Ex. 8. In cross-examination it is stated that neither charing nor blackening was found on the injuries as such the injured had been shot from more than six feets. Complainant Sher Khan in his FIR has clearly stated that appellant was armed with gun from which he fired at injured but he in his evidence before the trial Court changed the version and stated that appellant was armed with pistol and he fired from that weapon. He was confronted but denied to have been stated that fact in the FIR: This contradiction has been proved through the Investigating Officer. This witness was examined in Court on 11-12-1986 and after his lodging report country made pistol was stated to have been recovered from him. But there is no report from the Ballastic Expert as weapon appears to have not been sent. PW Mir Khan in his evidence has stated that appellant was armed with 12 bore pistol from which he fired. He .has stated that he identified the accused on moonlight. It is hardly possible that this witness could be able to note the bore of the weapon. He stated that he was fired from the distance of 15/16 paces and at the same time it was darkness therefore he was unable to say with certainty distance from which accused fired. He has stated that his brother told him in hospital that he had already lodged FIR and had given names of the accused. This was disclosed to injured as soon as he regained consciousness. According to him ha was examined by the police on 3/4 days of the incident. Alam Ex.13 has stated that he and his brother Lal Muhammad went to the Wardat after hearing fires. They saw appellant armed with .12 bore country-made pistol while others were with hatchets and Lathis and Mir khan had already sustained fire-arm injuries. He has stated that he was examined by police after some days. In. his cross-examination he has admitted that he and his brother- identified the accused from the distance of about half acre while accused were running away. He has also admitted that complainant told him that he has lodged his report and mentioned the names of accused. This witness has not given source of identification. Muhammad Sadiq is Mashir of Vardat. He stated that two empties were secured from the wardat and there were footprints and some stains of blood. He produced Mashirnama Ex.l6. He has admitted that complainant Sher Khan is his uncle. Jumo is Mashir of recovery of country-made pistol of appellant He has admitted that appellant produced the pistol from the hedge of his house and also produced two cartridges in his presence and prepared Mashirnama Ex.18 which he signed. Khuda Bux ASI taken the report at P.P.D alone and sent to police station for re-corporation in 154, Cr.P.C. book and sent injured to the Medical Officer Sanghar for treatment and certificate. He prepared Mashirnama Ex.16. He has stated that he examined Lal Muhammad and on 30-10-85 arrested all the accused and prepared Mashinama Ex 21. On the same day appellant voluntarily led the police to his house here he produced the country-made pistol which was concealed the hedge. Such Mashirnama Ex.18 was prepared. Complainant Mir Khan and Alam are brothers inter se. Mashir Sadiq is nephew of complainant. The enmity between the parties is admitted. P.W. Alam PW. Lal Muhammad are also their brother. The incident has taken place while there was darkness and case of prosecution is that accused were identified in moonlight but as stated above there are contradictions between the evidence of two brothers as Mir Khan injured stated that due to darkness he is not able, to give the distance from which the accused fired. The important factor is that according to FIR appellant was armed with gun while witnesses subsequently have stated that he was having pistol of .12 bore. There is much difference between the gun and pistol. This discrepancy has not even been explained by the prosecution. Moreover it is not possible for the witnesses in these circumstances to say that accused was armed with .12 bore pistol at the time of incident. There is no corroboration as the weapon was not sent to Ballistic Expert. Moreover on the same evidence two accused have been acquitted as they were given benefit of doubt. For the reasons stated above I give benefit of doubt to the appellant and acquit him. He is on bail. His bail bond stand discharged.

In the impugned judgment appellant has not been convicted for the offences punishable under section 13-D therefore I have not made any observation about the evidence of the recovery as separate case was registered and that appellant has been convicted and the appeal is being disposed of independently.

K.B.A./A-144/K Appeal accepted.

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