' CH. IFTIKHAR HUSSAIN, J.---Muhammad Aslam, Ghulam Hussain, Muhammad Iqbal, Muhammad Ashraf and Mst. Bashiran Bibi were tried under sections 302/396/109/34, P.P.C. In case F.I.R. No,260 registered with Police Station, Midh Ranjha, District Sargodha on 8-6-1997 for on the night between 7/8-6-1997 at about 1-00 a.m. In furtherance of their common intention with the abetment of Mst.
Bashiran Bibi committing trespass in the house of Muhammad Aslam complainant (P.W.9) in order to commit dacoity there and committing the Qatal-e-Amd of his brother Khizar Hayat deceased by firing burst of Klashnikov at him resulting into his death.
2.. On the conclusion of their trial, Muhammad Aslam and Ghulam Hussain were found guilty of the charge and so were convicted and sentenced as follows:-- ' Muhammad Aslam
(i) Under section 302 read with section 34, P.P.C. To death subject to confirmation by this Court and to pay compensation Rs,20,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C.
(ii) Under section 392 read with section 34, P.P.C. To ten years rigorous imprisonment with fine of Rs,5,000 and in default of the same to further suffer six months simple imprisonment.
' Ghulam Hussain
(i) Under section 302(b) read with section 34, P.P.C. To imprisonment for life and to pay compensation Rs,20,000 to the legal heirs of the deceased.
(ii) Under section 392 read with section 34, P.P.C. To ten years rigorous imprisonment and to pay fine of Rs,5,000 and in default of the same to further suffer six months simple imprisonment. Both of the sentences were to run concurrently with benefit of section 382-B, Cr.P.C.
3. Muhammad Iqbal, Muhammad Ashraf and Mst. Bashiran Bibi were extended the benefit of doubt and so were acquitted for prosecution's failure to prove the charge against them beyond any shadow of reasonable doubt.
4. Muhammad Aslam and Ghulam Hussain separately have challenged their conviction and sentences vide the aforementioned two appeals (Nos. 123-J and 913 of 1999) respectively.
5. The learned trail Court has submitted the above mentioned Murder Reference (No,395 of 1999) for confirmation of sentence of death of appellant Muhammad Aslam.
6. Muhammad Aslam complainant has brought criminal revision mentioned above (No,461 of 1999) for enhancement in the sentence of imprisonment for life of Ghulam Hussain to death.
7. He has also challenged the acquittal of Muhammad Iqbal, Muhammad Ashraf and Mst. Bashiran Bibi through Criminal Appeal (No,862 of 1999).
8. As all these five matters are outcome of one and the same case and under common sets of facts, hence are being disposed of by this single judgment.
9. Briefly the facts relevant for the disposal of these matters are that on 8-6-1997 at about 2-15. p.m. Complainant Muhammad Aslam (P.W.9) had made statement Exh.P.H. Before Welayat Hussain-S.-I. (P.W.11) at the aforesaid police station. The same is to the effect that he is resident of Hilal Pur and runs a shop there. On the night between 7/8-6-1997, he along with his brother Khizar Hayat and uncle Ghulam Rasool locked his house and went to sleep in the courtyard of the same.
At about 1-00 a.m. The light in the western room there was switched on. He saw there some persons. He got woke up his brother Khizar Hayat and other companions had told them that somebody was there inside. They on the opening of the door in the light of the bulb saw there three persons. One of them was armed with Klashnikov and the other with 222 bore rifle and the third with 12 bore gun. They went to that room. The deceased was ahead of them. The person armed with Klashnikov fired burst with the same. The bullets hit Khizar Hayat at his left side of the neck, left flank and the middle finger of the left hand. He succumbed to his injuries at the spot. They took shelter behind the wall and saved themselves. All the accused, thereafter, while firing decamped from the scene through the Naqab in the western corner of the room with their weapons. They checked their household articles but nothing was found missing in the same. The accused while leaving left behind an iron rod and Chadar. On their noise many persons were attracted to the spot. They have no enmity with anyone and also have suspicion against none.
10. The said S.I. After recording his statement read it over to him and he signed the same in token of it's correctness. He went to the spot and prepared injury statement Exh.P.F. Of the deceased and inquest report Exh. P.E. He entrusted the dead body to Muhammad Sarwar-Constable (P.W.5) for taking to the mortuary for postmortem examination. He recorded the statement of the witnesses and inspected the spot and collected the blood-stained earth there from and sealed it into a parcel and took into possession vide memo. Exh.P.I. He also took into possession an iron rode P.2 and Chadar from there P.3 vide memo. Exh.P.J. As well as three crime-empties of Klashnikov vide memo. Exh.P.K. He got prepared the site-plan Exh.P.J. And Exh.P.J/1 from Muhammad HafizDraftsman (P.W.6). He searched for the accused but they were not traceable.
11. Muhammad Masood, S.-I. (P.W.12) arrested appellant Ghulam Hussain and acquitted accused Muhammad Iqbal and Muhammad Ashraf on 9-7-1997 and Mst. Bashirn Bibi on 11-7-1997.
Muhammad Ashraf produced 7-mm licensed rifle before him and he took the same into possession vide memo. Exh.P.A. He obtained the non-bailable warrants of arrest of Muhammad Aslam appellant and got issued proclamation against him. He challaned Ghulam Hussain, Muhammad Iqbal, Muhammad Ashraf and Mst. Bashiran Bibi to the Court while showed Muhammad Aslam as proclaimed offender.
12. Muhammad Aslam appellant was arrested by Khanqah Dogaran police in some other case.
Aamar Masood-Inspector (P.W.12) arrested him in this case on 5-6-1998.
13. The learned trial Court formally charged all of them under sections 302/396/109/34, P.P.C. On two counts. They all pleaded not guilty.
14. The prosecution at their examined it's 13 witnesses. They were Bati (P.W.1), Muhammad Ashraf (P.W.2), Zameer-ulHassan (P.W.3), Sahab Khan-A.S.-I. (P.W.4), Muhammad Sarwar-Constable (P.W.5), Zafar Ali-Constable (P.W.6), Dr. Amjad Iqbal (P.W.7), Muhammad HafeezDraftsman (P.W.8), Muhammad AslamComplainant (P.W.9), Muhammad Ameer (P.W.10), Welayat Hussain-S.-I./I.O.
(P.W.11), Muhammad Masood-S.-I. (P.W.12) and Mr. Aftab Rasool TararMagistrate (P.W.13).
15. The report of the Chemical Examiner Exh.P.N. And that of Serologist Exh. P.P. Were tendered in the evidence.
16. The two appellants and their acquitted co-accused in their examination under section 342, Cr.P.C. Had denied the allegation appearing against them in the prosecution evidence. They pleaded innocence. They however, neither produced evidence in their defence nor opted to depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
17. The learned trial Court after hearing the parties came to the conclusion that the prosecution stood succeeded in proving the charge against Muhammad Aslam and Ghulam Hussain appellants and convicted and sentenced them as mentioned above, while not against the acquitted accused. It gave them the benefit of doubt and so acquitted.
18. We have heard the learned counsel for the parties at full length and perused the record.
19. The prosecution in support of it's case against the two appellants and the acquitted accused has mainly relied upon it's ocular testimony, identification parade. Extra judicial confession, medical evidence, recoveries of crime weapons, motive, the abscondence of appellant Muhammad Aslam and the abetment.
20. It's ocular account has been unfolded by complainant Muhammad Aslam (P.W.9) and Muhammad Ameer (P.W.10).
21. Their testimony is to the effect that they on the relevant night along with deceased Khizar Hayat and Ghulam Rasool P.W. Were asleep in the courtyard of their house. At about 1-00 a.m.
Muhammad Aslam complainant awakened the others and told them that there was bulb light in the western room and there were some persons in the same. They all went to that room and in the light of the electric bulb identified appellant Muhammad Aslam and Ghulam Hussain and acquitted accused Muhammad Iqbal armed with Klashnikov, 222 bore rifle and 12 bore gun respectively. Khizar Hayat deceased was ahead of all of them. Ghulam Hussain exhorted Muhammad Aslam to fire at them as they would not let them go. Thereupon, Aslam fired a Klashnikov burst at the deceased hitting on his neck, flank and finger of the hand, who fell down. On their hue and cry these accused left the place through the Naqab in the room with their respective weapons. They after the occurrence also saw acquitted accused Muhammad Ashraf running from there towards the saw machine.
22. It may be mentioned here that both these P.Ws. Are brothers to each other. The deceased was also their brother and Ghulam Rasool P.W. Their uncle.
23. It was argued by the learned counsel for the State assisted by the learned counsel for the complainant that they have no enmity with the two appellants and the acquitted co-accused and so they were worthy of placing reliance.
24. It may be mentioned here that though it has been found from the evidence on the record that they had no direct enmity with appellant Muhammad Aslam and acquitted accused Muhammad Iqbal and Muhammad Ashraf but they seemed to have some cause of grievance against appellant Ghulam Hussain and acquitted accused Mst. Bashiran Bibi as it is their own version that both were carrying on while she was the wife of their uncle Ghulam Rasool P.W. We do not want to dilate much upon this aspect of the matter as it is hardly needed in the peculiar facts and circumstances of the case. However, we consider it suffice to say here that mere absence of enmity of a witness with his adversary cannot stamp him as truthful. The real and crucial test is that if he had seen the occurrence or that his evidence rings with truth or inspires confidence to be believed.
25. Though, they as per their showing had seen the occurrence but from the same the question of identity of the accused in the instant case has remained not proved above doubt. It is because of the fact that the F.I.R. Exh. P.A. In this case was lodged by Muhammad Aslam complainant (P.W.9).
He in the same has narrated the occurrence. It but surprisingly did not contain the name of any of the accused/culprits. He simply has mentioned their features in the same but not any other specific clue or indication of their identity.
26. He has improved his stance at the trial than the one before the police. It seemingly was a dishonest attempt on his part to connect the accused with the crime. He has admitted in the cross-examination that he did not nominate any of them in his statement Exh.P.H. As the culprit. He has also improved his stance as regards the role of appellant Ghulam Hussain and acquitted accused Ashraf by saying, that Ghulam Hussain said to appellant Muhammad Aslam that inmates of the house had woke up and so he should fire burst upon them and thereafter Aslam fired burst of Klashnikov at the deceased and that they after the occurrence saw Muhammad Ashraf running from the spot towards the saw machine, who was guarding the other accused outside the room.
He was duly confronted with his statement Exh. P.H., where no such thing was found to be there. So, this was an indication of his attempt to establish their identity. The same was surely dishonest one.
Had he seen them at the spot, he would have named them in the F.I.R. And had not contended only to mention their features in the same. So, the portion in his statement regarding the names of the accused or their identity was required to be kept out of consideration. It is accordingly excluded from consideration.
27. The same is the position in the evidence of Ameer P.W. He too did not name the two appellants Muhammad Aslam and Ghulam Hussain and acquitted accused Iqbal in his statement Exh.D.A.
Before the police. He was duly confronted with the same, where in it was found to be so. He was also confronted with his said statement as regards the fact in his evidence that he after the occurrence had seen Muhammad Ashraf accused running from the place of occurrence towards the saw machine. It was found therefrom that he did not mention so before the police. It, therefore, appears that he too had improved his stance at the trial to much extent than the one before the police as regards the identity of the two appellants and the two acquitted male accused. This too was a dishonest attempt on his part to establish the linkage of the accused with the crime as he is the real brother of the deceased. It is quite clearly evident from his evidence that he too did not identify the two appellants and the acquitted male accused at the spot at the time of occurrence.
28. The testimony of these two eyewitnesses, therefore, is not free from doubt about their identity.
' It has also been found from their evidence that they had identified the accused before the trial Court. This identification of the accused by them is not sufficient to believe that they in fact were the perpetrators of the offence because of the fact that Muhammad Aslam P.W. In the cross- examination has admitted that he saw appellant Muhammad Aslam in the custody of the police at the police station on his arrest. Muhammad Ameer is his real brother. It then how could be possible that he had not seen him there. Mst. Bashiran accused is their close relative, while Ghulam Hussain appellant was also known to them as he allegedly was carrying on with her. Muhammad Ashraf and Muhammad Iqbal were their co-villagers. They, thus must have seen them many a times either in the police custody or in the Court before recording of their evidence. In presence of all these peculiar facts and circumstances of the case, the factum of their having identified them before the Court was of no significance. It, thus could not be attached much weight to in the matter.
30. Appellant Muhammad Aslam was not put to any identification test. Ghulam Hussain, Muhammad Ashraf and Iqbal were picked up in the test held for the purpose by P.Ws. Muhammad Ameer and Ghulam Rasool. The same is worthy of attaching no credence because Ghulam Rasool was not produced at the trial to testify that he in fact had, identified them in the parade held for the purpose. He has been given up by the prosecution as being unnecessary.
' Muhammad Ameer has stated that he identified Ghulam Hussain, Muhammad Iqbal and Muhammad Asghar. It may be mentioned here that no person with the name of Muhammad Asghar was an accused in the case. Anyway the mention that name may be the result of clerical mistake on the part of the learned trial Court but the fact remains that he had not identified them by describing their role in the occurrence as admitted by the concerned Magistrate in that behalf.
31. The identification of Ghulam Hussain, Muhammad Ashraf and Muhammad Iqbal without the description of their role in the occurrence had lost it's efficacy and it becomes not a reliable piece of corroboratory evidence. In this regard reference can he made to the cases of Ghulam Rasool and three others v. The State 1988 SCM R 557 and Muhammad Sharif and another v. The State 1994 PCr.LJ 2060 Lahore DB.
32. The identification of the accused in the parade is also without any sanctity for the reason that it appears from the evidence of the Magistrate that he did not observe all the necessary formalities in that behalf. In the case of Muhammad Yaqoob and three others v. The State 1989 PCr.LJ 2227 Multan (DB), the precautions to be taken in that behalf have been enumerated and similarly in the case of Kirir v. The State PLD 1996 Kar. 246 (DB). According to these esteemed authorities, such precautions are necessary to conceal the identity of the accused before he is put to identification test.
33. In the above mentioned case of Muhammad Yaqoob and three others v. The State, the following precautions have been described to be taken in such-like matter:--
(a) "Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence;
(b) a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It, is therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest the suspects are put to identification tests as early as possible. Such suspects should, preferably not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held.
This is to avoid the possibility of over-zealous I. Os showing the suspects to the witnesses while they are in policy custody. Even when these accused persons are of necessity, to be taken to Courts for remand etc., they must be warned to cover their faces if they so choose so that no witness could see them;
(c) identification parade should never be held at police stations;
(d) the Magistrate, supervising the identification proceedings, must verify the period, if any for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;
(e) in order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The Superior Courts have, through their wisdom and long experience prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it; (f)if there are more accused persons than one who have to be subjected to test identification; then the rule of prudence laid down by the Superior Court is that separate identification parade should ordinarily be held in respect of each accused person;
(g) it must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he can not observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
(h) the Magistrate conducting the proceedings must take. An intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of someone depends only upon his vigilance and caution;
(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses;
(j) the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings;
(k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e, as a friend, as a foe or as a culprit of an offence etc., and then incorporate this statement in his report;
(j) and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness;
(m) the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings; and
(n) the Magistrate has to give a certificate at the end of his report in the form prescribed by CH.H.C.
Of Vol-III of the Lahore High Court Rules and orders."
34. The learned Magistrate concerned has proved his report Exh.P.M. In this behalf. He did not appear to have observed all such formalities before the conduct of the identification parade of the aforesaid accused. This is so heavily reflective from the following portion in his statement at the trial.
"It has not been mentioned in identification parade that after the first witness identified the accused in identification parade he was sent away so that he could not communicate the other P.Ws. It has also not been mentioned that the P.Ws. Were called turn by turn from outside the jail. I had not mentioned that opportunity was provided to the accused to conceal their identification marks. I have not directed the accused to change their position after they were identified by first P.Ws."
35. An identification parade, which has been held without observing these formalities is not a safe piece of corroboratory evidence. In this regard reference can be made to the case of Allah Dad v.
The State PLD 1965 WP Lahore 288 (DB).
36. In the cited case the Magistrate supervising the identification parade did not take precaution to hide the scare marks on accused's face to conceal his identity. It was held that such identification parade was not a reliable piece of evidence.
37. It is also interesting to mention here in this context that according to Muhammad Ameer P.W., the identification parade in the case was held about eleven months after the occurrence. Such a delayed identification parade looses all it's evidentiary value. In this regard reference can be made to the case of State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1965 Supreme Court 1. The evidence of identification parade of the above named three accused therefore, in this case is of no significance.
38. The two eyewitnesses, therefore, II could not be relied upon safely as by their evidence, the identity of the accused in the instant case had not been established above doubt.
39. The evidence regarding the extra judicial confession of appellants Muhammad Aslam, Ghulam Hussain and acquitted accused Muhammad Iqbal and Muhammad Ashraf has been furnished by Zameer-ul-Hassan (P..W.3).
40. According to him, on the night between 8/9-6-1997, he and Noor Muhammad P.W. Were asleep in his house at village Hilal Pur. At about 1-30 a.m., these persons came to them and Muhammad Iqbal told them that on the pointation of accused Bashiran Bibi, they had committed dacoity in the house of the deceased and as he had woke up and so Muhammad Aslam fired at him at the instance of Ghulam Hussain and they may be got pardoned from his relatives and the other accused made the similar statements before them. He has also mentioned that he and Noor Muhammad went to the house of the complainant the next morning but he refused to compound the matter with them.
41. The story of alleged extra judicial confession of these accused before them appeals not to reason because it seems strange that on the day of occurrence or the next day, these accused had gone to them to confess their guilt and that too at late or odd hour of the night.
42. He and Noor Muhammad, admittedly, were neither councilor nor Lamburdar. So, they were not men of authority to exert influence on the complainant to get them pardon in the matter. Hence, their going to them to confess their guilt and too soon after the occurrence is not believable on the face of it.
43. Even otherwise, none else than him has stated so at the trial. Besides than this, it is also reflective from his evidence that at least Ghulam Hussain and Muhammad Ashraf had not confessed clearly before them that they have murdered the deceased. Hence, their alleged extra- judicial confession was having the shades and the trappings of a joint confession, which is inadmissible in evidence.
44. According to the case of Tayyab Hussain Shah v. The State 2000 SCM R 683, such an evidence being of weak type cannot be made basis to determine the question of guilt or innocence of accused till the same is corroborated by any other incriminating and confirmatory evidence, which is not available in this case as would appear from our discussion on the available evidence on the record. The same, therefore, could not be given effect to and used for any corroboratory purposes to the ocular testimony rendered by the two prosecution witnesses named above.
45. The medical evidence in this case is also of no consequence in this case. Dr. Amjad Iqbal (P.W.7) had found the following injuries on the dead body of the deceased:--
(I) A wound of entry with inverted margins going 3-1/2 x 2-1/2 c.m. On the left front lateral side of neck. Burning and blackening were present on the margins.
(II) Wound of exit with everted margins 5-1/2 x 1-1/4 c.m. On the back of right shoulder.
(III) Wound of entry with inverted margins going in 2 x 2 c.m. On the lower part of left internal chest. Blackening was present on the margins.
(IV) Wound of exit with everted margins 1-1/2 x 1-1/2 c.m. On the back of left lower chest 3 c.m. Left to middle.
(V) Wound of entry with inverted margins 1-1/2 x 1 c.m. The left fronto-lateral side of abdomen 3 c.m. Above and medial to left superior alias(sic) spine.
(VI) Wound of exit 1 x 1/2 c.m. With everted margins on the centre of right buttock.
(VII)Wound of entry with inverted margins going in 1-1/2 x 1-1/2 c.m. On the lateral side of left hand middle finger. Blackening was present on them rrgims(sic).
(VIII) Wound of exit with reverted margins on the medial side of left hand middle finger.
' These according to him were anti mortem and caused by fire-arm and sufficient to cause death in ordinary course of nature and of the probable duration as given in the eye-witness account. It but did not in any way lead to the inference that these were in fact caused by appellant Muhammad Aslam. The medical evidence, therefore, could be used as of supportive to the ocular testimony.
46. The evidence of recovery of crime weapon Kalashnikov from appellant Muhammad Aslam is of no consequence as no matching report of the expert in respect of the crime-empties and the weapon is available in the evidence on the record. Similar is the position of the .7 mm licensed rifle allegedly recovered from acquitted accused Muhammad Ashraf. So, the alleged recovery of these weapons was inconsequential.
47. As regards the motive, the evidence regarding the same has been furnished by P.W.2, Muhammad Ashraf. According to him appellant Ghulam Hussain had illicit relation with Mst.
Bashiran and deceased Khizar Hayat and Ghulam Rasool P.W. Used to stop him from the same. This seems to be a made up story just to create a motive with the accused to commit the crime because as per the own showing of the witness such matter was never reported to the police.
Besides than this, Muhammad Aslam complainant in the F.I.R. Has not alleged any motive behind the crime. He has clearly mentioned in the same that they had enmity with none and also no suspicion against any one. So, this story seemingly had been introduced at the trial. This, even otherwise, was only in the statement of the said witness and not supported by any other independent person. So, this motive stood not proved. It, therefore, could not be used as a piece of corroboration to the ocular testimony.
48. As regards the alleged abscondence of appellant Muhammad Aslam, the evidence regarding the same has been L furnished by Zulfiqar Ali constable (P.W.6) and Muhammad Masood, S.-I.
(P.W.12)..
49. Zulfiqar has stated that he was entrusted with the non-bailable warrants of Muhammad Aslam.
He searched for him but he was not traceable. He then executed the proclamation, the copy of which is Exh.P.C. He has admitted that the non-bailable warrants of arrest of the accused were not available on the file and that he did not mention in his report the mode of publicity of proclamation by way of beat of drum. His evidence, therefore, was insufficient and unsatisfactory to hold that the said appellant had in fact absconded.
50. Muhammad Masood, S.-I. Simply has stated that he handed over the proclamation of appellant Muhammad Aslam to the said Head Constable. The evidence of Muhammad Aslam, as already observed has not been found to be sufficient and satisfactory. So, his evidence too could not be relied upon much in this respect.
51. Even otherwise, it is evident from the evidence of complainant Muhammad Aslam that the said appellant was already absconding about three years prior to the occurrence. So, it appears that his abscondence, if at all it was so, was in relation to some other and not this case. Hence, the alleged abscondence of the said appellant could not be used as a piece of confirmation to the ocular testimony regarding his guilt in the matter.
52. As regards the evidence of alleged conspiracy or abetment rendered by Mst. Bashiran to her co-accused in the commission of the Qatl-e-Amd of the deceased, the same hardly is worthy of attaching any credence. The evidence in this regard has been furnished by Muhammad Ashraf (P.W.2). According to him about 1-1/2 years ago at evening time he and Mumtaz P.W. Were returning from the Darbar of Baba Shah Sher after offering Salam. They saw accused Mst. Bashiran, Ashraf, Iqbal and Ghulam Hussain sitting under a Sheesham tree and the lady was saying to them that dacoity is to be committed in the house of the deceased and they should come and she would point out his house to them and there upon accused Muhammad Ashraf and Iqbal said to her that they would come and Ghulam Hussain said that he would bring Aslam Kumhar with him to commit dacoity. This story on the face of it seems not probable and true as no sane person would ever plan murder or commission of dacoity so openly to be easily and conveniently heard by others to become witness against him. This story, thus absolutely is against all standards of common sense. The same sounds not well to the reason.. This seemingly has been fabricated just to rope in Mst. Bashiran as she was having strained relation with her husband Ghulam Rasool P.W., who is the uncle of the deceased. The story, thus, of her providing abetment to the other accused or hatching up of conspiracy by her is not confidence inspiring. The same, therefore, was discardable.
53. We, therefore, from the above discussion are convinced that the prosecution as per it's above mentioned evidence on the record could not prove the charge against the two appellants as well as the acquitted accused beyond any shadow of reasonable doubt. The two appellants, therefore, were not justifiably convicted and sentenced. However, the other accused were rightly given the benefit of doubt and acquitted.
54. The impugned judgment to the extent of the conviction and sentence of the two appellants Muhammad Aslam and Ghulam Hussain, therefore, is not liable to be sustained. Their respective appeals (Nos.123-J of 1999 and 913 of 1999) are, therefore, accepted, the impugned judgment to the extent of their conviction and sentence set aside and they are acquitted of the charge against them giving them the benefit of doubt. Appellant Muhammad Aslam is in the custody. He be set at liberty forthwith, if not required in any other case. Appellant Ghulam Hussain is on bail. He is discharged of his bail bonds.
55. Consequently, the Criminal Appeal No,862 of 1999 and Criminal Revision No,461 of 1999, brought by complainant Muhammad Aslam fail and these are dismissed.
56. The murder reference is answered in the negative The death sentence is not confirmed.