' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1187 of 1999 filed by Rafaqat Ali, appellant who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs.50,000 as compensation, in default two years' R.I. By learned Additional Sessions Judge, Gujrat vide judgment dated 3-11-1999.
' Criminal Revision No.711 of 1999 is also connected with the appeal filed by convict appellant as it is for enhancement of sentence of amount of compensation.
2. Occurrence in this case had taken place at 7-30 a.m. On 22-4-1997 at a distance of 2 miles from Police Station Sadar Lalamusa while the matter was reported to the Police by Mst. Munaza Bibi through written complaint Exh.P.A. At 9-00 a.m on the same day at Mauza Syed Ibrahim and the formal F.I.R. Exh.P.A./1 was recorded at 9-30 a.m. By Ansar Mahmood, Head Constable.
3. Briefly stated the facts of the case are that Mst. Munaza Bibi, the complainant was married with Muhammad Aslam 9/10 years prior to the occurrence. She had two sons and two daughters. The step-brother of the complainant namely Sabir Hussain was also residing near the house of the complainant. Mst. Nargis Bibi, the daughter of Sabir Hussain did not enjoy good character, which was the cause of insult. Two days prior to the occurrence, Muhammad Aslam being uncle, asked Mst. Nargis Bibi to mend her ways which offended Rafaqat Ali, brother of Nargis Bibi and turned out Muhammad Aslam and the complainant while abusing by saying that the complainant and Muhammad Aslam were giving bad name to his sister and that he would take the revenge. On 22- 4-1997 at 7-30 a.m., Muhammad Aslam having bag of seeds started for the fields. The complainant and Muhammad Ashraf, elder brother of Muhammad Aslam were behind Muhammad Aslam at a distance of 50 feet. When Muhammad Aslam reached in front of door of Muhammad Hussain, suddenly Rafaqat Hussain armed with a pistol emerged, raised Lalkara that he would take the revenge of insult of his sister. Muhammad Aslam turned around and ran towards the complainant while Rafaqat fired shots at Muhammad Aslam, which hit on his backside. He fell down. Rafaqat stepped forward towards complainant and Muhammad Ashraf but they entered into the house of Ghulam Haider and closed the door. Muhammad Aslam succumbed to his injuries at the spot.
4. Investigation of the case was taken over by Muhammad Afzal Khan, Inspector (P.W.9). He on receipt of information of murder reached along with Police officials at the place of occurrence, recorded statement of the complainant, examined the dead body, prepared injury statement Exh.
P. H. , inquest report Exh. P. J. , took into possession the blood-stained earth vide memo. Exh.P.B., two crime empties were also secured vide memo. Exh.P.C., carried out other formal investigation, arrested the accused on 28-4-1997, interrogated him who led to the recovery of pistol .30-bore which was taken into possession vide memo. Exh.P.D. And after completion of the investigation challaned the accused to face the trial.
5. At the trial, prosecution in order to prove its case produced nine witnesses in all. Then the A.P.P.
Tendered in evidence report of the Chemical Examiner Exh.P.K., report of the Serologist Exh.P.L. And closed the case of the prosecution. Statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the prosecution evidence submits that according to case of the prosecution, occurrence had taken place at 7-30 a.m. On 22-4-1997, the Police reached at the spot within 30/40 minutes, and that Muhammad Ashraf P.W.2 had admitted that when the police came at the spot, first of all the dead body was inspected and then recorded the statement of Mst. Munaza, complainant, wife of the deceased. According to learned counsel, in this background, it is clear that the F.I.R. Was recorded after due deliberation and consultation.
' It Further .'tbrrurs that both the eye- witnesses are L losely :elated to the deceased and not a single person from the locality was cited or produced he the prosecution though many persons . Ttracted to the place of occurrence. Adds that according to complainant when the deceased left his house along with seeds, she followed her deceased husband but this stand of the complainant is contradicted by the fact that neither deceased Muhammad Aslam had his own land nor had taken any land on lease from anybody. Elaborating his argument, learned counsel submits that according to Mst. Munaza, P.W.1 the deceased had taken the land on lease from Aslam Mohriwala while according to Muhammad Ashraf, P.W.2 the deceased had taken the land on lease from one Ghafoor. Learned counsel submits that Muhammad Ashraf P.W.2 real brother of the deceased resides on the other side of the village: Further submits that neither the seed was shown to the Investigating Officer nor the same was taken into possession.
' Learned counsel for the appellant with vehemence submits that there is clear conflict between ocular account and the medical evidence. According to him, in the F.I.R., the appellant was stated to be armed with .30-bore pistol and to the same effect was the statement of both P.Ws. 1 and 2, moreso, .30-bore pistol was taken into possession but according to post-mortem report, the injuries on the person of the deceased could not have been caused with .30-bore pistol but with a carbine or .12-bore gun. With above submissions, learned counsel submits that prosecution having failed to prove its case, the appellant is entitled to acquittal.
7. Learned counsel for the complainant submits that it is a case of promptly lodged F.I.R., motive is proved, it was a day light occurrence, so there was no question of mistaken identity and that both the parties being related inter se, there was no question of false implication specially when previously no enmity existed between the parties. He, however, frankly submits that injuries on the person of the deceased do not seem to be of bullet.
8. Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.
9. We have heard learned counsel for the parties at length and have gone through the record. In the instant case, according to complainant, both in the F.I.R. As also before the trial Court, the appellant fired at the deceased with .30-bore pistol. To the same effect was the statement of Muhammad Ashraf, P.W., real brother of the deceased. The Investigating Officer at the instance of the convict also took .30-bore pistol into possession from appellant. Dr. Farooq Ahmad Bangash, P.W.6, conducted post-mortem examination on the dead body of the deceased at 1-00 p.m. On 22- 4-1997. He found following injuries on the person of the deceased:--
(1) Fire-arm entry wound 1 c.m. x 1 c.m. Margin inverted. No blackening was present on the back of middle part of right side of chest. 5 c.m. Away from the mid-vertebral line. Exit wound 2 c.m. x 1 c.m.
Margin averted on the outer and lower part of right side of chest in the mid axillalry line.
(2) Four fire-arm entry wounds measuring 1/2 c.m. x 1/2 c.m. Margin inverted. 4 fire-arm entry wounds each measuring 1/2 c.m. x 1/2 c.m. Margin inverted in an area 6 c.m. x 5 c.m. In the back middle part of right side of chest, 3 c.m. Away from the mid vertebral line.
(3) Fire-arm wound 1/2 c.m. x 1/2 c.m. Skin deep on the back on the lower part of right side of the chest, 2 c.m. Away from the,mid vertebral line.
(4) A fire-arm wound 1/2 c.m. x 1/2 c.m. Skin deep on the left side of middle part of chest 1 c.m. Away from the mid vertebral line.
' A bare perusal of the above said injury and specially injury No.2, (four firearm entry wounds) clearly suggests that injuries on the person of the deceased were not result of a bullet which is used in a .30-bore pistol but were either of a carbine or .12 bore gun because in these weapons, cartridge is used. There is thus clear conflict between ocular account and the medical evidence and had the eye-witnesses been present at the spot and seen the occurrence, they must have not committed such mistake. Argument of learned counsel for the complainant that the complainant being lady, it was not possible for her to have recognized the weapon which the appellant was carrying at the time of occurrence is of no avail to the prosecution because P.W.2, Muhammad Ashraf is 10 years old and moreso real brother of the deceased. His stand too before the police as also before the trial Court was that accused fired with .30-bore pistol at the deceased. There was no need on the part of the complainant to follow her husband who was going to his fields while taking the seeds. There are, also contradictory statements about the land having been obtained on lease by the deceased inasmuch as according to complainant P.W.1 the deceased had taken the land on lease from Aslam Mohriwala while according to Muhammad Ashraf, P.W.3 the deceased was cultivating the land having taken on lease from one Ghafoor. The Investigating Officer neither took into possession the bag or the seeds, which the deceased was carrying at thr time of his murder.
' Report of the Fire-arms Expert Exh.P.M. Is positive as the empties taken into possession from the spot wedded with the .30-bore pistol,. Recovered on pointation of the appellant. This positive report is insignificant for the reason that empties were taken into possession from the spot on 22-4-1997, the appellant was arrested on 28-4-1997 and crime empties were sent to the office of the Fire- arms Expert on 28-4-1997, that is, the day of arrest of the appellant. It seems that after arrest of the appellant, empties were prepared by firing with .30-bore pistol, which was alleged to be recovered on the pointation of the appellant. No reliance can be placed on such a positive report of the Fire- arms Expert. Reliance can be placed upon 1998 SCM R 862.
There being clear conflict between ocular account and the medical evidence the presence of the eye-witnesses at the spot at the time of occurrence having been held to be doubtful and positive report of the Firearms Expert being not worthy of any credence, it is a case in which it can safely be said that prosecution has failed to prove and the appellant has been successful in creating doubts in the story set up by the prosecution. Grant of benefit of doubt being not a grace rather a right, we grant the same benefit to the appellant, accept his appeal and set aside the conviction and sentence recorded against him by the trial Court. The appellant is acquitted of the charge. His death sentence is not confirmed. Shama appellant being in jail shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision No.711 of 1999 filed by the complainant is dismissed.