1. ' Applicant abovenamed, being aggrieved by judgment, dated _26th January, 1981 of the learned Sessions Judge, Hyderabad, in Criminal Appeal No, 86 of 1980, whereby said appeal was dimissed and conviction of the appellant under section 326, P. P. C. Vide judgment, dated 20th November, 1980, in Sessions Case No, 193 of 1978 of learned IlIrd Assistant Sessions Judge, Hyderabad was confirmed, has filed the above petition, on the following facts and grounds : ' The prosecution case against the applicant, briefly stated, is that, complainant Shamsuddin, aged about 18 years, was sitting in front of a mosque at village Tando Qaisar, Taluka Hyderabad, during the night between 1st and 2nd of September, 1978 to watch celebration of the night of 27th of Ramzan-ul-Mubarak, when the applicant went there and pressed the complainant to accompany him to his Otak to play a tape-recorder and shot him from a pistol on his refusing to go with him, during the suspicious night. The complainant was shot on his lower extremity. The incident was witnessed by a Chowkidar Allah Rakhio, who had gone to the mosque to take water and also by the victim's uncle Allahdad, who has just coming out from the mosque. The devotees celebrating the night in the mosque and some other persons of the village, including Haji Ahmed Ali, the father of the victim, reached there. The victim's father arranged a transport and removed the injured to P. S. Tando Jam, where report was lodged at 3 O'clock on the same night. The crime was registered by Fateh Ali Shah S. I. P. He prepared mashirnama of injuries on the injured and referred him to L. M. C.
2. Hospital, Hyderabad, where he (the injured) was attended upon by the duty Medical Officer. Dr. Akhtar Hussain. Fateh Ali Shah S.
1. P. Inspected the vardat and prepared its mashirnama in presence of Ahmed Khan and Alood Khan mashirs. He recorded statements of the witnesses. The applicant obtained bail before arrest.
3. He was sent for by the S. I. P. Fateh Ali Shah on 19th September, 1978 and was interrogated about the crime weapon. He produced a country-made pistol and an empty cartridge from his otak at his village, in presence of Iqbal and Sikandar mashirs. After completion of investigation, the applicant was sent up to stand trial for having committed offences punishable under sections 504, 324 and 307, P. P. C.
4. ' The applicant was placed on trial on the charge of offences punishable under sections 504 and 307, P. P. C. In the Court of IIIrd Assistant Sessions Judge, Hyderabad, Prosecution examined complainant Shamsuddin P. W. I, Allahdad P. W. 2, Dr. Akhtar Hussain P. W. 3, Allah Rakhio P. W. 4, Muhammad Ismail mashir P. W. 5 (Exh. 11), Ahmed Khan mashir P. W. 5 (Exh. 13) Sikandar Ali mashir P. W. 7 (Exh. 15) and Fateh Ali Shah S. I. P. P. W. 8 (Exh. 16). The applicant made denial of the allegations, that he had shot the complainant Shamsuddin. He also denied that he had produced a pistol and its cartridge before police. He alleged false implication on account of family dispute. He examined in his defence one witness Ghulam Hyder Nizamani D. W. 1 (Exh. 20).
5. ' Learned Advocate for the applicant in support of the above petition submitted as under :-
(a) That it was night time incident, on account of admitted enmity on record, firing was from a distance and consequently due to mistaken identity, P. Ws. Have involved the present applicant.
(b) That complainant version is not supported by P. W. Allah Dad, presence of P. W. Allah Rakha is doubtful, as chance witness.
(c) Motive for the alleged incident seem to be flimsy.
6. ' In support of the above contention, learned Advocate for applicant relied upon cases reported in PLD 1974 Kar. 274, 1979 SCM R 214, 1980 SC MR 216 and PLD 1978 Kar.
7. 710.
8. ' Learned Advocate for the applicant relied upon case reported in PLD 1967 SC 334 and 1968 SC MR 281 and that the above revision, is to be treated like appeal, unlike revision against the acquittal.
9. Learned Advocate appearing for the State at the outset submitted, that he was not supporting the above revision petition, as there are material contradictions in the statements of complainant, P. W, Allah Dad and P. W. Allah Rakha a chance witness and motive alleged for the incident is flimsy. In addition to this, learned Advocate for the State submitted that medical evidence is contrary to the ocular evidence of the complainant regarding the distance from which firing was alleged, as well as place from where firing was made. Since it was night time, question of mistaken identity could not been ruled out.
10. ' I have carefully considered the above submission made by the learned Advocates before me and I have gone through R & P of the learned trial Court as well as impugned judgment and the cases cited by the learned Advocate for the applicant.
11. ' Admittedly there are material contradiction in the statement of complainant and medical evidence. According to complainant shot was fired from very near and from front, whereas according to P. W. Dr. Akhtar Hussain, there was no charing and hence shot was fired from distance.
12. Doctor further stated, that shot was fired from side, whereas according to complainant it was fired from front. In addition to this P. W. Allahdad in his statement before the learned trial Court stated, that when he came out from mosque, he saw applicant coming from other side and when applicant reached near complainant, he fired at him. Whereas according to complainant, he was sitting, applicant came to him and talked to him and on his refusal to go with him, he then fired, P.
13. W. Allahdad does not speak of any conversation between complainant and applicant at all and as such his presence is doubtful. P. W. Allah Rakhio presence at the time of incident is by chance only.
14. In his cross he admitted, that he was challenged by police in gambling cases. He further stated, that applicant fired from 2/3 ft., which is belied by the evidence of P. W. Dr. Akhtar Hussain. In view of this, his statement does not inspire confidence. Keeping in view these facts on record, in my opinion prosecution has failed to establish its case beyond reasonable doubt against the applicant and as such his conviction cannot legally be maintained, as applicant by statement of D. W. Ghulam Hyder, a relation of complainant has at least A created doubt in respect of prosecution case. I find statement of D. W. Ghulam Hyder straightforward and convincing as well. In the face of alleged enmity between, the parties as alleged by applicant, it would be unsafe to rely on the statements of P. Ws. Without independent corroboration, which is not at all available in present case, as statement of recovery mashir P. W. Sikandar Ali is not at all convincing and further applicant conviction under section 13-D of Arms Ordinance was set aside by the learned appellate Court, against which State has filed no appeal.
15. ' Therefore I allow the above revision and set aside impugned judgments of both the learned lower Courts and consequently conviction of the applicant and sentences awarded to him by said impugned judgments and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the applicant in the above Revision.