' This judgment will dispose of Criminal Appeal No,435 of 1993 filed by Muhammad Aslam, who was convicted and sentenced by learned Additional Sessions Judge, Gujranwala on 25-5-1993 for the murder of Muhammad Sarwar to undergo life-imprisonment with a fine of Rs,10,000, in default two years R.I. He was further directed to pay Rs,30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default six months, S.I. Benefit of section 382-B, Cr.P.C., was also granted to the appellant.
2. It may also be noted here, that two co-accused of the appellant namely Qari Zahid-ur-Rehman and Mst. Mukhtaran Bibi were also tried by the learned Trial Court but they were acquitted by the learned Trial Court.
3. The occurrence in this case took place on 27-6-1989 at 10-00 a.m. In the area of Kalo Wali, Police Station, Noshera Virkan, District, Gujranwala while the matter was reported to the police by Abdul Hameed Khan real brother of the deceased examined as P.W.2 at "Thanewala Chowk" and his statement was recorded by Imdad Hussain C.W.2, which is Exh.P.C. Later on, on 24-2-1990, complainant Abdul Hameed filed a complainant against the appellant and his two acquitted co- accused.
4. Complainant Abdul Hameed Khan had instituted this complaint under section 302/34, P.P.C., alleging therein that sister of respondent/accused No,1, who was young was seeking (religious) instructions from respondent/accused No,2 who was Imam of the Mosque in the village. There was a whisper amongst the people of the village. It was alleged in the complaint that real brother of the complainant Muhammad Sarwar (deceased) tried to persuade the accused No,1, that he should not send his sister to accused No,2 as people of the brotherhood were indulging in taunts and invectives. Accused No,1 felt annoyed and conveyed this to his mother-accused No,3. In para.5 of the complaint it was asserted that two days prior to the murder, accused Nos.1 and 3 man handled Muhammad Sarwar. Muhammad Arshad and Abdur Rashid hushed up the matter, but accused Nos.1 and 3 dished out threat that they would murder him. In para.5 of the complaint it was further alleged that on 27-6-1989 the brother of complainant was going towards the mosque for taking bath. He was followed by complainant, P.W Abdur Rashid and Mubashar Iqbal. When Muhmamd Sarwar deceased reached the Bethak of accused/respondent No,1, accused Nos.1 and 3 came out of the Bethak. Accused Nos.2 and 3 stated to the brother of complainant that he would be given taste of hurling an allegation to their sister. Accused forcibly lifted Muhammad Sarwar and took him inside the Bethak. The complainant and P.Ws. Abdur Rashid and Mubashar Iqbal ran in a bid to rescue but the accused bolted the door from inside. The complainant and P.Ws. Tried to open the door but in vain. They saw through the window that accused Nos.2 and 3 had caught hold of Muhammad Sarwar and accused No,1 took out a pistol from his dub and fired at the head of Muhammad Sarwar from a close range which landed on the left side. On the alarm raised by the complainant and P.Ws. Many persons of the village gathered. Accused fled away by making threat that any one coming near would be done to death. Muhammad Sarwar died at the spot. The occurrence was witnessed besides the complainant by P.Ws. Abdur Rashid and Mubashar Iqbal.
5. The complainant further alleged that he narrated this occurrence to the Police. Since the accused were influential persons they colluded with the Police. The local Police got thumb- impression of the complainant on a blank paper and F.I.R. No,214, dated 27-6-1989 under section 304, P.P.C., was registered by Noshera Virkan Police, to benefit of the accused. The local Police had cited witnesses belonging to the party of accused. The matter was reported to the higher police officers but in vain. The complainant alleged that accused Nos.1 to 3 after having formed preconcert had deliberately murdered his brother Muhammad Sarwar, therefore, they be tried under section 302/34, P.P.C.
6. Prosecution in order to prove its case produced eight witnesses in all. Two C.Ws. Were examined namely Muhammad Ashraf C.W.1, and Imdad Hussain S.I. C.W.2 while Akhtar Hussain D.S.P./C.I.A., was examined as D.W.1.
7. It may be mentioned here, that appellant was arrested in this case on 30-6-1989 and he got recovered pistol 30 bore P.2, which was taken into possession vide memo. Exh.P.F.
8. Learned counsel for the appellant has read before me the prosecution evidence, the statement of the C.Ws. And the statement of the appellant recorded under section 342, Cr.P.C., and made the following submissions. He submits that initially the case of the complainant in the F.I.R. Was that it was an accidental death of his brother because the appellant Muhammad Aslam was cleaning the pistol of his co-accused Qari Zahid-urRehman, who had brought the same from his house for this purpose but later on, after six months complainant had filed the complaint Exh.P.B. Before the learned Trial Court. He submits that three eye-witnesses produced by the complainant are close relation of the deceased. Abdul Hameed P.W.2 is real brother of the deceased while Mubashar Iqbal P.W.3 is son of the deceased and Muhammad Arshad is husband of sister of the deceased. He further submits that Mubashar Iqbal and Muhammad Arshad P.Ws. Are not mentioned in the F.I.R.
He submits that initially in the investigation of Imdad Hussain S.I. C.W.2 it was found that it was a case of section 304, P.P.C., and not section 302, P.P.C. He also submits that later on, a false motive and false story of the occurrence was concocted by the prosecution. He submits that recovery of pistol was planted on the appellant. He submits that his case is covered by under section 304, P.P.C., and not section 302, P.P.C., because the occurrence had taken place before 1990 when the Qisas and Diyat Ordinance had not come into force.
9. On the other hand, learned counsel for the State supports the judgment of learned Trial Court and submits that Imdad Hussain S.I. C.W.2 had obtained the thumb impression of the complainant Abdul Hameed on a blank paper and had not given actual facts in the F.I.R., so Abdul Hameed complainant had to resort to the Criminal Proceedings in the shape of complainant in which the appellant has been convicted and sentenced as mentioned above.
10. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned Trial Court. In Exh. P.C. Which is a complaint, on which the formal F.I.R. Was registered in that case, all the prosecution witnesses alongwith complainant stated that death of the deceased has taken place accidentally as the, appellant was cleaning the pistol of Qari Zahid- urRehman, later on after six months, this story was changed and it was stated that it was an intentional murder. It has been admitted by P.W.8 namely Raj Mehboob Mumtaz D.S.P., Sadar that in earlier investigation Imdad Hussain S.I. Found it, to be a case of section 304, P.P.C., and the same facts were verified by S.D.P.O. Kamokee.
11. I may also mention here that Muhammad Ashraf, who was named in the F.I.R., as an eye-witness was examined as C.W.1 and he had supported the version of the appellant as recorded in his statement under section 342, Cr.P.C. Imdad Hussain S.I., was examined as C.W.2, who had investigated this case initially. He had also cone to the conclusion that it was not a case of section 302, P.P.C.; but it was a case of section 304, P.P.C. Lastly, the investigation in this case was carried out by Akhtar Hussain D.S.P./C.I.A. He also came to the conclusion that it was a case of section 304, P.P.C., and not by section 302, P.P.C. I may also mention here, that three eye-witnesses produced by the prosecution in the complaint Exh.P.B. Are close relation of the deceased. There are two versions on the record, one in the F.I.R. Lodged by Abdul Hameed and other in the complaint also filed by him. The version given in the F.I.R. Exh.P.C. Also gets support from the statement of the appellant recorded under section 342, Cr.P.C., and also by the Court-witnesses, who have no enmity or grudge and against the complainant party. It is a settled law as held by the Superior Courts of the country that when there are two versions on the record then those should be put into juxtaposition and the version put forwarded by the accused should be given preference, if that is more probable and convincing one. So, I believe the version of the appellant.
12. In this view of the matter, the conviction and sentence of the appellant is altered from section 302, P.P.C., to section 304, P.P.C., because I find that it was a case of accidental firing, so life- imprisonment awarded to the appellant by the learned Trial Court is reduced to 10 years R.I. Benefit of section 382-B, Cr.P.C., is also granted to the appellant. As far as, sentence of fine of Rs,10,000 is concerned, i,e, set aside. However, sentence of compensation of Rs,30.000 is maintained, in default thereof six months S.I. Appellant is on bail, he will be taken into custody and be sent to judicial lock- up to serve out his remaining sentence. With these observations, this appeal stands disposed of.