1. ' BASHIR A. MUJAHID, J.-Peera son of Makhan appellant along with Jamshaid, co-accused, after having been tried by the learned Addl: Sessions Judge, Faisalabad under section 302/34, P.P.C. In case F.I.R. No,477/2001, dated 5-7-2001 registered at Police Station, Tandalianwala, Faisalabad for murder of Sarfraz, was convicted and sentenced to imprisonment for life under section 302(c), P.P.C. Vide the impugned judgment, dated 23-5-2003. He was also ordered to pay compensation of Rs, 1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., in default thereof to undergo R.I. For six months. He was also convicted under section 7/21/91 SIAA and sentenced to three years' R.I. However, sentences in both the cases were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended in his favour.
2. ' Through the same judgment Jamshaid co-accused was acquitted of the charge.
3. ' The brief facts of the case are that F.I.R.. No,477, dated 5-7-2001 was got registered at Police Station, Tandalianwala on the statement Exh.P.F. Of Mubarak Ali, P.W.7 alleging therein that on the day of occurrence at 8-30 a.m. The complainant's son Sarfraz was intending to irrigate land of Killa No, 11, Square No,28, when he reached near the Nakka, Peera (appellant) armed with gun .12 bore double barrel, Jamshaid armed with gun .12 bore single barrel arid Ahmad Ali armed with rifle .7 mm arrived there by raising Lalkara to the effect that they will not allow Sarfraz to irrigate Killa No, 11.
4. Sarfraz replied that he will irrigate the land and he raised Kassi in order to divert the water to Killa No, 11, on which, Jamshaid fired from .12 bore gun which hit Sarfraz at the right shoulder on front side. Second fire made by Peera hit at the chest of Sarfraz. Sarfraz after receiving the injuries fell down. Ahmad Ali armed with rifle .7 mm also continued aerial firing. Muhammad Aslam son of the complainant and Nazir Ahmad, his son-in- law witnessed the occurrence. Sarfraz succumbed to the injuries at the spot while the accused fled away front the spot with their weapons The motive for the occurrence was that Sarfraz had taken on lease land measuring four acres owned by Shera, brother of the complainant for the period of two years and that land was in possession of Peera, accused prior to the occurrence and there was dispute over the land obtained by Sarfraz on lease due to which the occurrence took place.
5. ' Muhammad Jehangir Khan, P.W.10 after recording the statement Exh.P.F. Of Mubarak, P.W.7 sent the same to the police station for registration of formal F.I.R. Exh.P.F./l and he himself arrived at the place of occurrence. He took the dead body of Sarfraz into possession and prepared the injuries statement through memo. Exh.P.B. And inquest report' Exh.P.C. And despatched the dead body for post-mortem examination. He also collected the blood-stained earth from the spot through memo. Exh P and Kassi P.l through memo. Exh.P.T. He recorded the statements of the prosecution witnesses under section 161, Cr.P.C. On the next day he also took into possession last worn clqthes of the deceased through memo. Exh.P.E. On 7-7-2001 he arrested Peera, appellant who on 11-7-2001 while in police custody led to the recovery of gun .12 bore double barrel which was taken into possession through memo. Exh.P.J. On 12-7-2001 he sent the accused in judicial lock-up. Thereafter, the investigation of the case was entrusted to Abdul Majid Inspector, P.W.Ll who on 8-8-2001 arrested Ahmad Ali and Jamshaid and Ahmad Ali while in police custody led to the recovery of Sota P.5 which was taken into possession through memo. Exh.P.M. While Jamshaid led to the recovery of rifle .7 mm which was taken into possession through memo. Exh.P.K. And hatchet Exh.P.N.
6. According to his investigation Jamshaid and Ahmad Ali accused were not present at the spot. He also found that Jamshaid resorted to firing by rifle .7 mm after the occurrence took place. He concluded that Sarfraz died as a result of fire made by Peera accused/appellant. He completed the investigation and submitted the challan against Jamshaid and Peera in the Court while challan against Ahmad Ali, accused finding him juvenile offender was submitted in the Court established under Juveilile Justice System Ordinance, 2000, who was subsequently acquitted of the charge.
7. ' After submission of the challan the trial Court framed the charge which was denied by the accused and they claimed trial. .
8. ' The prosecution examined as many as 11 witnesses to prove the guilt of the accused.
9. ' The medical evidence was furnished by Dr. Muhammad Yusuf Mughal, P.W.2 who on 5-7-2001 conducted the post-mortem examination on the dead body of Sarfraz and found the following injuries on his person:- Wound of Entrance: .
10. ' Six wounds of entrance, lacerated, fire-arms in an area of 17 x 16 c.m. On the front of left shoulder and left front upper chest. Each entrance measuring 3/4 x 3/4 c.m. Cavity deep. The margins were inverted.
11. Wound of Exit: ' Two fire-arms lacerated wounds of exit, each measuring 3/4 x 3/4 c.m. On the back of chest near midline in the middle of back chest. There was fracture of left clavicle and a rib oft left side and fractures of two ribs on right back chest with injury to thoracic spine. Two hardened pellets recovered from the subcutaneous tissues of back middle chest. One hardened pellet was recovered from the cot.
12. ' The ocular account was furnished by Mubarak Ali, P.W.7 who was complainant of the case. He supported the version of the F.I.R. And narrated the motive for the occurrence. He was father of Sarfraz deceased. Nazir Ahmad, P.W. 9 was eye-witness of the occurrence. He supported the story as narrated by the complainant, P.W.7. He was son-in-law of Mubarak Ali, P.W.7.
13. ' Nasir FC, P.W.l deposited the sealed parcel of blood-stained earth in the office of Chemical Examiner. Zawar Ali Patwari, P.W.3 prepared the site plan of the place of occurrence. Abdul Rauf FC, P.W.4 escorted the dead body of Sarfraz for post-mortem examination. Abdul Razaq HC, P.W.5 recorded the formal F.I.R. Exh.P.F./l on the basis of complaint Exh.P.F. Sikandar, P.W.6 identified the dead body of Sarfraz at the time of postmortem examination. Nazir Ahmad FC, P.W.8 was entrusted non-bailable warrants of Jamshaid Ali and Ahmad Ali and thereafter he got them declared proclaimed offenders.
14. ' After close of the prosecution evidence, the statement of-the appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question "have you anything else to say", he stated as under:- ' "I am innocent. Jahangir subinspector registered the case falsely against me and my co-accused on the statement of Mubarik Ali after having connivance with complainant party. We have been falsely involved in this case. In fact Sarfraz was murdered by his real brother Aslam on dispute of land because there is a long litigation and animosity between Mubarik complainant of this case and. Us as well as Sarfraz deceased had forcibly married with Mst. Khalida alias Rani who was fiancy of Aslam brother of deceased and due to this annoyance Aslam fired at deceased Sarfraz with gun. 12 bore belonging to his real brother Ramzan an army employee. "
15. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
16. ' Learned counsel for the appellant has argued that there is clear contradiction in the medical evidence and the ocular account as according to the complainant first fire-arm injury was caused by Jamshaid (acquitted co-accused) at the deceased, while injury attributed to Peera, appellant was not available at the deceased as only one fire-arm injury was caused which has been attributed to appellant as well as to Jamshaid, who has been acquitted of the charge, therefore, the appellant is also entitled for acquittal.
17. ' The appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
18. ' I have heard the learned counsel for the parties and examined the record.
19. ' Admittedly, only one fire was made at the deceased which has been attributed ooth to the appellant as well as to Jamshaid, acquitted co-accused. There is clear contradiction in the mldical evidence and the ocular account. During the investigation conducted by Abdul Majeed, Inspector, P.W, 11 it was found that Jamshaid accused had not participated in the occurrence but he had fired from rifle .7 mm from .Whom also got recovered rifle .7 mm after his arrest but according to both Mubarak Ali, P.W.7 and Nazir Ahmad, P.W.9 fires made by Jamshaid from the gun hitting the decease^ on his right shoulder, therefore, learned counsel for the appellant is justified to argue that there is clear contradiction in the medical evidence and the ocular account. Although during the investigation it was concluded by Abdul Majeed Inspector, P.W.Ll that fire made by Peera accused hit the deceased and he also got recovered double barrel gun used by him during the occurrence but in absence of recovery of empty from the place of occurrence, recovery of gun is inconsequential. Furthermore, he was attributed fire-arm injury with single barrel gun by Mubarak Ali, P.W.7 as well as of Nazir Ahmad, P.W.9 who were admittedly inimical to the appellant and involved litigation at different levels, therefore, ocular account has not been corroborated by medical evidence. The injury attributed to Peera appellant is not available, on the deceased. The motive has also been disbelieved by the trial Court and it has been Concluded by the trial Court that as a matter of fact land belonging to Shera, brother of the appellant was in possession of the accused party and it was Sarfraz deceased who wanted to irrigate land and Kassi was also taken into possession from the spot, therefore, even if it is believed that Peera appellant fired at the spot he might have participated in the occurrence in his self-defence to protect his property which was admittedly in his possession and deceased Sarfraz wanted to occupy the same by irrigating the land of Killa No, 11.
20. ' In view of clear contradiction in the medical evidence and the ocular account and the age of the appellant (stated to be 70 years when his statement was recorded under section 342, Cr.P.C.) and fatal injury was attributed to Jamshaid who was found innocent during the investigation and was also acquitted by the trial Court and his acquittal has not been challenged by the complainant, I find that the prosecution case was not proved against Peera appellant beyond shadow of doubt, so benefit of doubt is extended in his favour. Resultantly, . Appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is ordered to be released forthwith if not required to be detained in any other case.