' LIAQAT ALI SHAH, J. This appeal under section 417 (2A) Cr.P.C. Is directed against the order dated 25-9-2004 of learned Additional Sessions Judge-I/Izafi Zilla Qazi Swat whereby the accused- respondents were acquitted in a case registered vide F. I. R. No, 781 dated 25-12-2001, under sections 324/452/34 P.P.C., Police Station Kabal District Swat.
2. Facts, relevant for the decision of this appeal, are that on 25-12-2001, the above mentioned case was registered at the instance of Muhammad Iqbal complainant son of Abdur Rahim, in injured condition, at casualty of Saidu Sharif Hospital. He reported to the effect that on the eventful day, after Isha prayers, he along with his brothers was present in his house when, in the meanwhile, the accused-respondents, Sharafat Ali, Afsar Ali son of Abdul Qahar, Sirajuddin son of Zulfiqar and Abdul Qahar son of Subedar Malik, duly armed with fire arms, entered into their house and started firing at them. With the firing of Abdul Qahar the complainant was hit and injured whereas the fire of other accused proved ineffective. The occurrence, as per report, was witnessed by brothers of complainant namely, Jamaluddin, Allauddin and Salahuddin. Motive for the occurrence was given, dispute over property.
3. After usual investigation the case was sent to the Court for trial. The prosecution produced eleven witnesses. The complainant appeared as P.W.3 who gave almost the same statement which was recorded at the time of report.
' Similarly, Abdur Rahim was examined as P.W.2 and Jamaluddin as P.W.4. They also gave statement in line with the statement of complainant. P.W.2 stated that site plan (Exh.PB) was prepared at his instance and that in his presence five empties (Ex.P1) and two spent bullets (Exh.P2) were also taken into possession by the I.0 vide memo. (Exh.PW2/1) duly signed by him. He also stated that a tube-rod which was lit at the time of occurrence was also taken into possession vide memo. (Exh. PW2/2).
' P.W.5, Muzakkar Shah A.S.-I., has conducted investigation. He confirmed his investigation including preparation of the site plan, recording statement of witnesses under section 161, Cr.P.C., Preparation of recovery memo. (Exh.PW2/2) and recovery of five empties of 7.62 bore and two spent bullets vide memo. (Exh.PW2/1). PW6, Abdul Aziz, has partially investigated the case.
' Dr. Saeedullah was examined as P.W.8 who confirmed that on 25-12-2001 he examined Muhammad Iqbal son of Abdur Rahim and found four lacerated wounds and two fire-arm entry wounds on his persons. According to him, the probable duration of injuries was six hours. On 29-1- 2001 a foreign body was removed by resident surgeon and handed over to ward incharge.
4. Learned counsel for the appellant argued that the impugned judgment is based on mis- appreciation of evidence; that the accused-respondents are charged by injured complainant and the said statement is further supported by the statement of eyewitnesses, medical evidence and recoveries. As such, there was no justification for the learned trial Judge in acquitting the accused- respondents.
5. On the other hand learned counsel for the accused-respondents supported the judgment of acquittal and argued that the prosecution has failed to establish its case by examining at least eleven witnesses; that the impugned judgment is based on proper appreciation of evidence and acquittal has been rightly recorded.
6. I have considered the arguments of learned counsel for the appellant with reference to the record and have gone through the impugned judgment as well. The evidence has been appreciated by the learned trial Court in the background of previous F.I.R. Registered between the parties. The number of accused charged in the F.I.R. Is four. According to the prosecution evidence, the injured and the eye-witnesses were sitting close to each other on cots and the same position is given in the site plan (Exh.PB) as well.
7. When four accused are firing and the members of complainant party are sitting close to each other, it does not appeal to logic that the other eye-witnesses would escape unhurt. Additionally, on the back of the place where the injured and the eye-witnesses were shown present, there are rooms coming in the line of fire if firing is made from point No,6 at points Nos. 1, 2 and 3 but surprisingly only from two points i.e, points A and B, two spent bullets were recovered. No other bullet mark or spent bullet is shown in the site plan. Similarly total five empties of 7.62 bore and two empties of .30 bore were recovered. As the occurrence has allegedly taken place inside the house, so it cannot be said that somebody had taken away the empties. There is no mention of the tube- rod in the F.I.R. And perusal of the site plan indicates that mark "I", where the tube-rod was lit, has been written with a different pen which leads one to the inference that after realizing that being night occurrence, the source of identification was required to be given, therefore, such addition has been made. This fact alone creates doubt about the identification of the accused at the relevant time and, therefore, I hold that this addition has been made intentionally as, in absence of source of identification, keeping in view the distance given in the site plan between the places of the accused and the P.Ws. i.e, 16 paces and more, it would not be possible for any of the P.Ws. To identify the culprits.
8. The I.O (P.W.5) had admitted in his cross-examination that initially one Rehmat Khan son of Sher Zaman had left his house on the night of occurrence. Similarly P.W.9. Has also admitted that as a result of investigation, Rehmat Khan was found responsible for the occurrence, however the complainant party was not charging him. This P.W. Has further admitted that from the investigation the accused-respondents were found innocent. Otherwise too, after acquittal the accused- respondents have earned double presumption of innocence which cannot be interfered with lightly.
9. In view of the above discussion, I find that the trial Court has rightly acquitted the accused- respondents and this appeal, as such, stands dismissed.