' This judgment will dispose of Criminal Appeal No,985 of 2000 and Criminal Revision No,517 of 2000, directed against the judgment, dated 4-7-2000 passed by the learned Special Judge, S.T.A., Mianwali, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to undergo life imprisonment with compensation of Rs,1,00,000 (Rupees one lac) under section 544-A, Cr.P.C. Or in default 5 years' R.I. With the benefit of section 382-B, Cr.P.C.
2. The brief facts as narrated by the complainant Ahmad Khan P.W.9 are that on the day of occurrence at 6 p.m. He alongwith his brother Hashim Khan deceased who was lying on a cot adjacent to the window, was present in their Baithak when two fires were made from outside the street into the window and one of those hit Muhammad Hashim on his chest while the other fire hit the wall of the Baithak. On hue and cry raised by the complainant Muhammad Suleman and Mehar Khan reached at the place of occurrence and told him that Muzammil Irfan the present appellant fired with .30 bore pistol and fled away. The motive behind the present occurrence was a family defection and enmity between the parties.
3. After receipt of information about the occurrence the police completed all the necessary formalities. Thereafter, Ejaz Hussain, S.-I. Alongwith his subordinates proceeded to the spot from where he after preparing injury statement Exh.P.G. And inquest report Exh.P.H., secured the blood- stained earth vide memo. Exh.P.E. He also took into possession crime-empty of .30 bore Exh.P.4. Vide memo. Exh.P.C. He also received last-worn clothes of the deceased all stained with blood vide memo. Exh.P.A. Thereafter, the investigation of the case was transferred to Liaqat Ali, S.-I. Who arrested the appellant Muzammil Irfan and found the accused-appellant innocent. Ultimately challan was prepared and the same was submitted for trial.
4. Prosecution in order to prove its case has produced as many as 10 witnesses including Investigating Officers, Doctor, eye-witnesses and other relevant persons. After tendering in evidence the Chemical Examiner's Report, Exh.P.K. And Report of Serologist Exh.P.L., learned D.D.A.
Closed the prosecution evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded not guilty and claimed to be tried. One D.W. Was also produced by him.
5. Learned counsel for the appellant in support of this appeal submits that appellant has been falsely implicated in this case, that in fact the deceased died due to his own negligence while cleaning the pistol .30 bore due to accidental fire and the complainant also reported the same in these words to the Investigating Officer Ijaz Hussain, P.W.10 who had recorded the inquest report and proceedings under section 174, Cr.P.C. And even during the brief facts of the case which are Exh.D.C. The same facts were mentioned and that the Investigating Officer had admitted this fact while recording brief facts in the inquest report and the same are duly verified by Ahmad Khan P.W.
The same fact is submitted by Doctor who conducted the post-mortem examination on the dead body of the deceased by stating that fire was shot from a distance of one feet as it had got burnt edges. Learned counsel submits that the occurrence had taken place in the month of January, 1996 and according to the prosecution case the occurrence had taken place at 6 p.m. When Maghrab prayer took place at 5-05 p.m., that the occurrence had taken place in the dark hours of night and the same was not witnessed by anybody. Learned counsel submits that draftsman who was examined as P.W.6 has stated that there was electric pole but bulb was not there. Learned counsel submits that eye-witnesses had not seen firing the appellant on the deceased. They had only stated that they had seen the appellant coming in the street having a pistol with him. Learned counsel submits that the prosecution has improved his story later on by stating that fire was shot through window but according to the Draftsman window was closed at the time of occurrence and the distance given by the prosecution is 4 to 5 feet which is contradicted by the medical evidence, that the F.I.R. Was lodged at 7 p.m. Learned counsel submits that in fact in Column No,2 of the inquest report Exh.D.D., the time of report has been given as 6 p.m. Learned counsel submits that no case is made out against the appellant. He submits that if both the versions one put forward by the complainant and the other put forward by the appellant are put in juxtaposition then the version put forward by the appellant seems to be more plausible and convincing one and the same is affirmed by Ijaz Hussain, S.-I. P.W.10 and also by Liaqat Ali, S.-I. Examined as D.-W.1. He submits that the appellant is entitled to acquittal.
6. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that appellant is named in the F.I.R., specific role is attributed to him. He is the main accused. There is no question of substitution. Substitution is a rare phenomena. He submits that version of the appellant is totally false and belated one. Learned counsel for the complainant submits that as far as Exh.D.D. Is concerned, that is photo copy and is not admissible in the eyes of law. He submits that according to the medical jurisprudence burnt edge can take place if the fire is even shot from the distance of 6 feet. Learned counsel submits that prosecution has proved its case against the appellant beyond any shadow of doubt and that already a lenient view has been taken by the learned trial Court by not awarding death sentence.
7. I have heard the learned counsel for. The parties. As far as Exh.D.D., is concerned, though it is photostat of the original but the maker of this document namely Ijaz Hussain, S.-I., the Investigating Officer of this case, examined as P.W.10 has admitted that he had written the same and also signed the same. Even according to Article 164 of Qanun-e-Shahadat Order, 1984 the documents which are due to modern devices etc., can be taken into consideration. These documents are Exh.D.C. And Exh.D.D. Which are brief facts and the inquest report and were prepared under section 174 Cr.P.C., has got the signatures of Ahmad Khan P.W. Though he has denied but there was no reason on the part of Ijaz Hussain, S.-I. To falsely depose against these documents Exh.D.C. And Exh.D.D. In fact the complainant and his eye-witnesses had not approached the Court with clean hands. Initially the case of the complainant was that the deceased died due to accidental death as the deceased was cleaning his pistol and the fire hit his body accidentally but according to Doctor Nusrat Ullah P.W.5 the injury No,1 which is entry wound, the edges of wound were burnt and according to the cross-examination he had stated that this injury could have caused within the range of one foot.
The distance given by the Draftsma n and in the rough site plan prepared without scale by the Investigating Officer is four feet from the street to the place of occurrence. The draftsman has also admitted that during the occurrence the window was closed If this was the position then fire could not have hit from the other side when the deceased was lying on the cot. The appellant while recording his statement under section 342, Cr.P.C. While specifically replying to Question No,5 has given his own version which is reproduced below:-- "The real facts of the case are that firstly Ahmad P.W. Reported that the deceased had met accidental death at his own hand and made statement the copy of which is Exh.D.C. Before Ijaz Hussain, S.-I., P.W.10 who conducted the proceedings under section 174, Cr.P.C. Which are also contained in Exh.D.C. And no F.I.R. Was recorded before that. Later on at the asking of Taj Muhammad Kund a notable of our Illaqa who was inimical towards me prevailed upon Ahmad Khan P.W. And got a false case registered against me. The witnesses are close relatives of the deceased. During the investigation, I was found innocent and no recovery was effected from me of any crime weapon as I was not involved in this occurrence. The witnesses have deposed falsely."
8. If both the versions i,e, of the complainant and the appellant are put in a juxtaposition, then it seems that the version of the appellant is more plausible convincing one and nearer to the truth of D.W.1. Liaqat Ali, A.S.-I. Who has also investigated the case has submitted that he found the appellant innocent in this case. Even the first version of the appellant before the Investigating Officer was that he was innocent and has been falsely implicated in this case and it was a case of accidental fire.
9. After having gone through the prosecution evidence and hearing the submissions made by the parties, I am of the considered view that the prosecution has not been' able to prove its case beyond any shadow of doubt. In this view of the matter, this appeal is accepted, conviction and sentence awarded to the appellant is set aside. He is on bail. He shall be discharged from his bail bonds. The revision petition is dismissed.