Muhammad Ahsan Bhoon, J.--This appeal is directed against the judgment dated 28.11.2002 passed by the learned Addl. Sessions Judge, Nankana Sahib District Sheikhupura whereby Qaisar Ali alias Qasar appellant was convicted under Section 302(b) PPC for causing the murder of Manzoor Ahmad deceased and sentenced to death. He was also ordered to pay Rs, 1,00,000/- as compensation under Section 544-A Cr.P.0 to the legal heirs of the deceased, or in default whereof to undergo 6 months imprisonment. Apart from the above said appeal, learned trial Court has submitted Murder Reference No, 78/2003 for confirmation of death or otherwise of the appellant as required under Section 374 Cr.P.C.
2. As per FIR (Ex.PB/1), briefly the story of the prosecution as narrated by the complainant is that he was a labourer and living with his family in Medina Park Bucheki. He did labour. Muhammad Shafi and Shahmand residents of Chak No, 642 GB had come to his house as guests. On 16.4.2001 at 10.00 a.m. he and his son Manzoor Ahmad (deceased) came in the street to see them off. Qaisar son of Shah Muhammad (accused) and Muhammad Ali son of Muhammad Ibrahim (acquitted accused) both armed with pistols .30 bore came from front side. Qaisar accused raised lalkara that Manzoor Ahmad (deceased) be taught a lesson for not giving back his money. Qaisar (accused) fired with his pistol .30 bore straight at Manzoor Ahmad (deceased) to kill him, which hit him on right sider of his abdomen. He fell down. Qaisar (accused) made second fire while Manzoor was lying on the ground which hit on his left arm. Muhammad Ali acquitted accused kept making aerial firing and raising lalkaras that if anyone had come near them he would be finished. Occurrence was witnessed by Muhammad Shafi and Shahmand along with him. Many people of Mohallah came after hearing fire shots. The accused ran away by making firing and raising lalkaras.
Manzoor Ahmad injured was taken to THQ Hospital but he succumbed to the injuries near Nankana Sahib.
3. After due investigation, report under Section 173 Cr.P.C. was submitted in the learned trial Court.
Charge was framed against the accused who denied the charge, pleaded not guilty and claimed trial. Qaisar appellant was examined under Section 342 Cr.P.C. In answer to question as to why this case was against him and why the PWs deposed against him the appellant replied as under: The PWs are chance witnesses and they deposed against me falsely due to their relationship with the complainant because the complaint is their moeen. I have been involved in this case merely on the basis of suspicion. It is a blind murder case. I am innocent. I have been involved in this case due to dispute over money between me and the complainant(Muhammad Anwar).
Qaisar Ali appellant did not opt to appear as his own witness in disproof of the allegation levelled against him as required under Section 340(2) Cr.P.0 nor did he produce any defence evidence.
5. The learned trial Court after hearing the parties passed the above said conviction and sentence through the impugned judgment, which has been assailed by the appellant.
6. Learned counsel for the appellant has contended that the ocular account furnished by Muhammad Anwar (PW.2), Muhammad Shafi (PW.3) and Shahmand Ali (PW.4) is contradictory to medical evidence as medical evidence does not corroborate the ocular account. No empty was recovered from the spot nor pistol allegedly recovered from the appellant was sent to Forensic Science Laboratory and the eye-witnesses were the chance witnesses.
7. On the other learned Addl. P.G assisted by the learned counsel for the complainant argued that it was a day light occurrence, FIR was promptly lodged and there was no motive for false implication of the appellant particularly when the appellant was first maternal cousin .of the deceased and the minor discrepancies in the ocular and medical account would be of no avail to the appellant.
8. Heard. Evidence perused.
9. FIR (Ex.PB/1) was lodged on the statement of Muhammad Anwar complainant (PW.2), father of the deceased wherein he stated that Qaisar appellant made fire with pistol which hit on front, right abdomen of deceased Manzoor Ahmad and second fire made by appellant Qaisar hit on left arm of deceased and thereafter while making aerial firing he ran away from the spot and while appearing before the learned trial Court he reiterated the same version whereas Muhammad Shafi (PW.3) and Shahmand Ali (PW.4) respectively stated that Qaisar appellant made firing with his pistol which hit Manzoor Ahmed deceased who fell down but the fact remains that the story put forth by the complainant in the FIR is absolutely contra to the medical evidence. Both the aforesaid eye-witnesses PW.3 and PW.4, were residents of Chak No, 642 GB, which according to aforesaid PW.3 was at a distance of 2/23 K.Ms from Bucheki where the occurrence took place, so both the aforesaid PWs were chance witnesses.
10. The medical evidence in this case was furnished by Dr. Khalid Mehmod (PW.1) who conducted the post-mortem examination of deceased Manzoor Ahmad and found the following injuries on his body:--
1. Fire-arm wound of entry burning present (1/2) cm on the right back of middle loin 1 cm away from vertebral canal with an exit wound 1 cm. x 1 cm. on the front of right and below the umbilicus.
2. Fire-arm wound of entry burning 1 cm x 1 cm on the inner of left lower forearm with an exit wound on 2 cm x 2 cm on the outer of upper left forearm.
3. An abrasion 2 cm x (1/4) cm on the outer front of left chest.
4. Fire-arm wound of entry with burning cm x cm in base of left neck and then touched abrasion x c.m on the top of left shoulder, 5 cm away from the exit wound.
The above said injuries would show that Injury No, 1 was an entry wound with burning on right back of the deceased which according to the complainant (PW.2) was on front of the belly of the deceased. This glaring contradiction is evident from the evidence available on record. Similarly Injury No, 4 which was another entry wound with burning on the back of right shoulder but not even a single word was stated by the complainant in the FIR as well as before the learned trial Court to explain the said injury and that too was on the back of the deceased which further negates the prosecution version.
11. No empty was recovered from the spot in the presence case and even the pistol recovered at the behest of the appellant was not sent to Forensic Science Laboratory to ascertain whether the same was in working condition or not particularly when there was allegation that besides two effective shots, the aerial firing was also made. So non-availability of the empties from the spot and mere recovery of pistol with no report of Forensic Science Laboratory does not furnish any corroboration particularly when ocular account is not confidence inspiring and is visibly contra to the medical evidence.
12. In the light of the above, it is abundantly clear that the witnesses had not seen the occurrence as the version set forth by the prosecution is contra to medical evidence qua the seat of injuries as well as the number of injuries on the body of the deceased and no corroboration came from the evidence of recovery and the case as attempted to be established by the prosecution is not free from doubt particularly when falsification of the oral testimony through medical evidence takes bottom out of the prosecution case. Reliance can be placed on a judgment of the Honourable Supreme Court of Pakistan reported as 1981 SCM R 132.
13. Resultantly, this appeal is allowed, conviction and sentence awarded to the appellant by the learned Addl. Sessions Judge, Nankana Sahib vide judgment dated 28.11.2002 is set aside and he is acquitted of the charge. The appellant shall be set at liberty forthwith if he is not required in any other case. Murder Reference is answered in negative.