' This judgment will dispose of Criminal Appeal No,103/.1 of 1999 filed by Ghulam Channa appellant, who was convicted and sentenced by learned Additional Sessions Judge, Lahore under section 302(b), P.P.C. To undergo imprisonment for life with further direction to pay Rs,10,000 to heirs of the deceased as required under section 544-A, Cr.P.C. Through his judgment dated 22-9-1998.
2. Occurrence in this case had taken place at 3-45 p.m. On 1-4-1996 in Fareed Colony which is at a distance of 2-1/2 kilometers from Police Station Kot Lakhpat, Lahore while the matter was reported to the Police by Nazar Islam (P.W.1) at 5-20 p.m. The same day through complaint Exh.P.A. And the formal F.I.R. Exh.PA/1 was recorded by Muhammad Anwer. A.S.-I. (P.W.10) the same day.
3. Brief facts of the case were that Nazar Islam complainant had 7 sisters out of whom Rukhsana was married to Ghulam Channa and about one week prior to the occurrence, she had joined the complainant at Lahore due to strained relations with her in-laws. Parents of the complainant wanted to send Rukhsana with Ghulam Channa but she was not agreeing. Ghulam Channa was also adament to take Rukhsana with him and also had been threatening the complainant to send Rukhsana forcibly with him. Family members of the complainant had been trying to find out a solution of the matter through punchayat but could not succeed. On 1-4-1996, complainant alongwith his father Manzoor Elahi, Muhammad Rashid and Muhammad Bashir was present in the house when in meanwhile Ghulam Channa entered into the house and asked for sending Rukhsana with him. Parents of the complainant replied that Rukhsana was not present in the house upon which Ghulam Channa said that a lesson would be taught to them for not sending Rukhsana with him. Thereafter, Ghulam Channa by taking out the pistol from his shalwar and simultaneously fired three shots on the father of the complainant one shot hit on the waist of father of the complainant and went through and through from the chest. Injured was taken to the hospital where he succumbed to the injury.
4. After registration of the formal F.I.R., Muhammad Afsar, S.-I. (P.W.6) proceeded to the place of occurrence and collected blood-stained earth from the place of occurrence and took the same into possession vide memo. Exh.P.B. He also took into possession 3 crime empties P.1/1-3 vide memo. Exh.P.C. Accused was arrested on 2-5-1996 who while in Police custody led to the recovery of mauzer P.6 which was taken into possession vide memo. Exh.P.E. After completion of the investigation, the Investigating Officer challaned the accused to face the trial.
5. Prosecution in order to prove its case produced 12 witnesses in all out of whom Nazar Islam (P.W.1), Muhammad Bashir (P.W.2) and Abdur Rashid (P.W.3) were eye-witnesses while the doctor who conducted the postmortem examination one the dead body of deceased was examined as P.W.7.
' Thereafter, statement of the appellant was recorded under section 342; Cr.P.C. Report of the Forensic Science Laboratory is Exh.P.K. And that of the Chemical Examiner is Exh.P.L. While the report of the Serologist is Exh.P.M. After conclusion of the trial, appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant has read before me the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And submits that all the three eye-witnesses produced by the prosecution are close relations of the deceased; there is conflict between ocular account and the medical evidence; Rukhsana ex-wife of the appellant was never produced by the prosecution; report of the Fire-arm Expert, Exh.P.K. Is in favour of the appellant because 3 empties recovered from the spot did not match with the pistol allegedly recovered on the pointation of the appellant and that deceased had two wives, second wife was Khair-un-Nisa, brother of whom had lodged a case under sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 for the abduction of Khair-un-Nisa, so possibility of false involvement cannot be ruled out.
7. Learned counsel for the State, on the other hand, submits that it is a case of single accused; there was no question of mistaken identity because the parties were known to each other, it is not a case of substitution and that recovery was affected from the appellant. Further, submits that shot fired by the appellant proved fatal.
8. I have heard learned counsel for parties and have gone through the prosecution evidence and statement of the appellant recorded under section 342, Cr.P.C. In the instant case, Nazar Islam (complainant) son of the deceased who claims to be an eye-witness had stated in the F.I.R. That the appellant fired 3 shots and one of them hit the deceased on his waist but according to doctor who was examined as P.W.7 injury on the front side of chest was entry wound and not the exit wound. At this juncture, perusal of statement of the doctor is necessary to reach at a just conclusion which is reproduced hereunder:-- "On 2-4-1996 at 12.00 noon while I was on duty I conducted the post-mortem examination on the dead body of Manzoor Elahi son of Abdul Majid General appearance Injuries.
1(a) An oval lacerated wound 1.5 x 2.5 c.m. With collar of abrasion inverted margin chest cavity deep present on front of left chest 3 c.m. To the left of anterior mid line, 5 c.m. From left nipple at 9 '0 clock position (entry wound).
1(b) 1 x 1 c.m. Circular lacerated wound margin everted present on back of chest, 13 c.m. To the right posterior mid line just below the tip of scapula (exit wound).
2(a) 0.6 x 0.6 c.m. Circular lacerated wound abdominal cavity deep with collar of abrasion present on left iliac fossa, just above iliac crest, 14 c.m. To the left of anterior mid line and 41 c.m. Above left knee joint (entry wound).
2(b) 1 x 1 c.m. Circular lacerated wound present on right buttock 8 c.m. To the right of posterior mid line, 10.5 c.m. Below posterior iliac crest.
2.0 x 0.6 c.m. Abrasion on front of left thigh, 6 c.m. Above left knee joint and 35.5 c.m. Below injury No,2 (a)."
From a perusal of the above injuries on the person of the deceased, it is crystal clear that had the complainant been present at the spot, he would have stated in the F.I.R. That the shot which hit the deceased was not from the back side but was from the front side. Furthermore, there were 3 fire shots made by the appellant while according to the post-mortem report, there were two injuries of fire-arm while the third one which was abrasion cannot be said to have been caused by fire-arm.
' Muhammad Bashir (P.W.2) is real maternal nephew and son-in-law of the deceased Manzoor Elahi and was not resident of the place of occurrence. Similarly, Abdul Rashid (P.W.3) is nephew of the deceased and also not resident of the place of occurrence. Not a single independence witness had been produced by the prosecution. It may be noted here that the Investigating Officer of this case was residing just in front of house of the complainant party. Three empties were recovered from the spot, these were sent to the fire-arm expert on 11-4-1996 while the pistol allegedly recovered on the pointation of the appellant on 5-5-1996 was sent to fire-arm expert on 21-5-1996 and that report of the Fire-arm Expert Exh.PK it shows that 3 empties recovered from the spot did not match with the pistol recovered on the pointation of the appellant.
' Taking into consideration overall facts and circumstances of the case, particularly conflict between ocular account and medical evidence, all related eye-witnesses, report of the Fire-arm Expert that the empty recovered from the spot did not match with the pistol recovered on the pointation of the appellant and the criminal case got registered by Khurshid brother of Khairun- Nisa, second wife of deceased, possibility of false involvement cannot be ruled out. The benefit of any doubt arising in the prosecution ungrudingly has to go to the accused. Resultantly, this appeal filed by the appellant is accepted, conviction and sentence recorded by the trial Court is set aside, appellant is in jail, he shall be released forthwith, if not required to be detained in any other case.