1. ' IFTIKHAR HUSSAIN BUTT, J.---A case No,221/2005 was registered at Police Station Kotli on pretext of an F.I.R. Lodged by Zulfiqar Hussain Shah, complainant, on 14-9-2005 at 5-30 p.m. Alleging therein that at 4-00 p.m. He along with his brothers Zaffar Hussain Shah, Mushtaq Hussain Shah and nephew Naveed Hussain Shah went into their land for cutting grass. The accused-persons, who were disputing their possession, waylaid. As soon as he along with his companions entered into the land, Tazeem Hussain Shah while raising. a Lalkara launched an attack upon him and also ordered Israr Hussain Shah to fire a shot, whereupon Israr Hussain Shah fired a shot of .12 bore gun upon his brother Zaffar Hussain Shah with the intention to do away with his life, who by sustaining severe injury fell down and became unconscious. Israr Hussain Shah has been firing shots whereas Abbas Shah, Sarfraz Shah, Tazeem Shah and two unknown accused-persons started pelting stones upon them. Abbas Shah inflicted an injury upon his head with the stone. After the occurrence, all the accused-persons fled away. Meanwhile, other relatives of the complainant arrived at the spot, who took the injured to the hospital but doctor told them that Zaffar Hussain Shah has expired.
2. ' On receiving information of a murderous attack, Sardar Iftikhar Ahmad S.-I. Police (P.W.13) went to D.H.Q. Hospital Kotli where the complainant filed an F.I.R. With him, who sent the same to police station whereat Malik. Muhammad Siddique Head Constable Police (P.W.14) registered a case against the accused- persons under sections 302, 337, 147, 148 and 149, A.P.C.
3. ' On the same day, said Sardar Iftikhar Ahmad S.-I. Police prepared injury form Exh.PR and an inquest report Exh.PG. He also sent the dead body for post-mortem.
4. ' Dr. Muhammad Faisal (P.W.9) C.M.O. D.H.Q. Hospital Kotli conducted the post-mortem of dead body and found the following injuries:--- Entry wound: ' On left lateral aspect of thigh measuring 2 c.m. In length and 1-1/2 c.m. In width. Small pellets wounds on frontal aspect of thigh and Lf. Inguinal region.
5. Remarks/Opinion: ' Entry wound on Lf. Lateral aspect of thigh measuring 2 c.m. 'in length and 1-1/2 c.m. In width that ruptured the femoral vessels leading to excessive blood loss.
6. Cause of death: ' Haemorrhagic shock. (Secondary to excessive blood loss).
7. ' After the post-mortem, the bloodstained clothing of the deceased along with pellets and plastic wad were taken into possession by Sardar Iftikhar Ahmad S.-I. Police vide recovery memo. Exh.PF attested by Muhammad Taj Constable Police (P. W.10) and Pervaiz Iqbal Constable Police (P.W.11).
8. ' On the same day, said Sardar Iftikhar Ahmad S.-I. Police prepared injury form of Zulfiqar 'Hussain Shah (P.W.1), got him medically examined and obtained medical examination report Exh. P. J.
9. ' On the same day, the bloodstained clay and stones (vide recovery memo. Exh.P.C.) and empty of .12 bore gun (vide recovery memo. Exh.P.D.) were secured from the place of occurrence by Ata-ur- Rehman S.-I. Police (P.W. 17) in presence' of Bashir Hussain Shah (P.W.4) and Imtiaz Hussain Shah (P.W.5).
10. ' On 15-9-2005 the accused-persons were apprehended by the police.
11. ' On 21-9-2005 the site plan Exh.P.1 was prepared by Ch. Muhammad Saghir Patwari (P.W.8).
12. ' On 22-9-2005 Israr Hussain Shah, accused, led to the recoverey of .12 bore gun, which was taken into possession vide recovery memo. Exh.PE attested by Shah Peer Shah (P.W.6) and Aftab Hussain Shah (P.W.7).
13. ' It was reported by Forensic Science Laboratory vide its report Exh.PHH, dated 8-10-2005 that the crime empties of .12 bore have been fired from the said gun.
14. ' It was reported by Chemical Examiner vide his report Exh.P.O. That the stone/clay arid clothes of the deceased are stained with blood.
15. ' The charge was framed on 19-11-2005 whereby the accused denied the guilt and claimed the trial.
16. ' In support of its case, the prosecution produced Zulfiqar Hussain Shah (P.W.l), Mushtaq Hussain Shah (P.W.2), Naveed Hussain Shah (P.W.3), Bashir Hussain Shah (P.W.4), Imtiaz Hussain Shah (P.W.5), Shah Peer Shah (P.W.6), Aftab Hussain Shah (P.W.7), Ch.Muhammad Saghir Patwari (P.W.8), Dr. Faisal Hameed (P.W.9), Muhammad Taj Constable Police (P.W. 10), Pervaiz Iqbal Constable Police (P.W. 11), Muhammad Hanif Constable Police (P.W. 12)', Sardar Iftikhar. Ahmad S.-I. Police (P.W.
17. 13), Malik Muhammad iSiddique Head Constable Police (P.W. 14), Ata-ur-Rehman Inspector Police (P.W. 17), Zulqamain Sarfraz D.S.P. (P.W. 18) and Raja Karamat-Ullah Inspector Police (P.W. 19).
18. ' The salient feature and circumstances appearing against the accused in prosecution evidence were put to them for their explanation, as required by section 342, Cr.P.C. But all the accused- persons refuted the prosecution evidence and claimed to be innocent; however, they submitted that in fact the complainant party launched an attack upon Tazeem Hussain Shah, one of the accused-persons and Israr Hussain Shah went to rescue him but during grappling a shot was fired by the .12 bore gun and Zaffar Hussain Shah was killed.
19. ' Siddique Hussain Shah (D.W.l), Wahid Hussain Shah (D;W.2) and Shafqat Hussain Shah (D.W.3) were produced in defence. Tazeem Hussain Shah, Israr Hussain Shah, Abbas Hussain Shah, and Iftikhar Hussain Shah accused-persons also appeared before the Court below and got their statements recorded on oath under section 340(2), Cr.P.C.
20. ' After completion of the trial, Additional District Criminal Court Sehnsa, Camp Kotli, convicted and sentenced Israr Hussain Shah to death under section 302(B), A.P.C. And one year S.I. Under section 13/20/65 AA. Abbas Shah was also sentenced to one year under section 337-A(l), A.P.C. Whereas other accused-respondents were acquitted of the charge vide its judgment, dated 28-2-2006.
21. Feeling aggrieved and dissatisfied, Israr Hussain Shah and Abbas Hussain Shah convict-appellants lodged an appeal for their acquittal whereas Zulfiqar Hussain Shah, complainant, preferred an appeal for enhancing the sentence of Abbas Hussain Shah and passing an order of conviction and sentence against other accused-persons, who were acquitted of the charge by the trial Court. A reference has also been made by the trial Court for confirmation of death .Sentence. The above captioned two appeals and a reference are subject matter of this judgment which have been consolidated and shall be disposed off by this single judgment.
22. ' Mr. Abdul Aziz Ratalvi, the learned counsel for the convict-appellants contended that the trial Court fell in grave error while passing an order of sentence against the convict-appellants. The learned counsel argued that the complainant party launched an attack upon Tazeem Hussain Shah, one of the accused, in order to dispossess him from his rooms and land, meanwhile Israr Hussain Shah came to rescue his father, who firstly fired in air but during grappling with the complainant- party, the shot was fireH, which hit Zaffar Hussain Shah deceased, but the complainant party instead taking him towards hospital started beating the accused party and due to the excessive bleeding Zaffar Hussain Shah expired on the way to hospital. The learned counsel for the defence vehemently agitated that the complainant party failed to establish its possession upon the disputed land and according to the revenue record, the disputed land is in possession of Kotli Development Authority. The learned counsel pointed out that disputed land is surrounded by trees; therefore, the growth of grass is impossible on the disputed land.
23. ' The learned counsel emphasized that neither the grass nor any sickle or "Chader" was taken into possession. In this manner, the prosecution miserably failed to prove that actually the complainant party went to cut grass from the disputed land. The learned counsel pressed into service the submission that it is incumbent upon the prosecution to prove its case and it cannot avail benefit from the defence version. The learned counsel agitated that it is the prerogative of the defence to setup different versions; therefore, the version of the sudden provocation raised by the defence does not absolve the prosecution from its bounden duty to prove its story beyond any shadow of reasonable doubt. The learned counsel maintained that the evidence of extra-judicial confession is also not reliable because the police by using third degree tactics can cause to say any statement from an accused under detention. The learned counsel zealously argued that the prosecution failed to prove that Israr Hussain Shah intentionally. Killed Zaffar Hussain Shah, deceased; therefore, his case falls under section 318, A.P.C. According to him, if the intention of Israr Hussain Shah, convict, would have been to do away with the life of deceased, he certainly would have targeted the vital parts of his body; therefore, the seat of injury also proves that the intention of Israr Hussain Shah, convict-appellant, was not to kill the deceased. In support of . His contention, the learned counsel cited the following authorities.
2. 2005 PCr.LJ 1689.
3. 2005 YLR 1757.
4. 2006 YLR 209.
24. ' Ch, Muhammad Ilyas, Advocate, the learned counsel for the complainant, controverted the arguments raised by the learned counsel for the defence and submitted that the time and date of occurrence, the presence of both parties at the spot, the fact of firing shot upon the deceased by .12 bore gun, the recovery of weapon of offence, the report of Chemical Examiner, the report of Forensic Science Laboratory, the seizure of bloodstained clothing, the recovery of an empty, the preparation of injury form of deceased and the inquest report have been admitted by the defence; however, the. Place of occurrence is disputed. The learned counsel argued that the defence has categorically mentioned in its appeal that the complainant party wanted to dispossess'them from the disputed land; therefore, Israr Hussain Shah came from the house of Sikandar and made aerial firing and during scuffle when the eye-witnesses tried to snatch away rifle from Israr Hussain Shah, a shot accidentally hit to Zaffar Shah, deceased. According to him, it has been further admitted by the defence that at the time of occurrence the gun was in the hands of the Israr Hussain Shah, accused, who fired shot. The learned counsel pointed out that in the light of prosecution evidence the place of occurrence is situated at a distance of 74/75 feet away from the rooms built by the accused-phrty; therefore, the place of occurrence is the land of complainant-party and not the accused-party. The learned counsel also argued that the main story of prosecution has not been challenged in the cross-examination; therefore, it would be deemed to be proved. The learned counsel laid great stress upon the point that not a single suggestion was put to the eyewitnesses that at the time of occurrence they were not present at the spot or they are telling lie on account of relationship, which shows that the defence has not disputed the veracity of eye-witnesses' account. The .Learned counsel further contended that Shah Peer Shah, and Aftab Hussain Shah P.Ws. Have in unequivocal manner testified that in their presence when Inspector Police asked Israr Hussain Shah about the rifle by which he fired shots, he replied that he has concealed that gun in the house but the above stated portion of the statement of the P.Ws. Was not challenged, which copies in the purview of extra-judicial confession. The learned counsel also pointed out that Shafqat Hussain Shah (D.W.3) testified that Israr Hussain Shah told the police at the time of recovery of gun that it is the same gun by which he had fired a shot upon Zaffar Hussain Shah. The learned counsel agitated that the defence evidence and the statements of accused-persons on oath further strengthen the prosecution story. The learned counsel pressed into service the submission that Israr Hussain Shah, accused, has confessed the occurrence in clear words in his statement recorded under section 342, Cr.P.C., which proves the prosecution version beyond any reasonable shadow of doubt. The learned coupsel went on to argue that it has been proved on the record that the .12 bore gun, a weapon of offence, was owned by Tazeem Hussain Shah, who was also present on spot at the time of occurrence; therefore, he has fully abetted the offence as a member of unlawful assembly in prosecution of common object of murder but the trial Court committed an illegality while acquitting him of the charge. Similarly, Abbas Shah, accused, was also awarded a lesser sentence which may be enhanced and all other accused-respondents who were members of an unlawful assembly may be sentenced under law. The learned counsel finally submitted that the sentence of death awarded by the trial-Court, to Israr Hussain Shah be maintained but the sentence of Abbas Shah, accused, be enhanced and all other accused- persons may also be sentenced to rigorous imprisonment. In support of his arguments, the learned counsel referred to me the following case law:-
(i) PLD 1983 Lah. 602, (ii) 1998 PCr.LJ 175-1362, (iii), 1999 PCr.LJ 910, (iv) 2002 PCr.LJ 471, (v) 2005 PCr.LJ 1384, (vi) 2006 PCr.LJ 91 and (vii) PLD 2006 SC 354 ' Mr. Riaz Naveed Butt, the learned Additional Advocate General appearing on behalf of the State, has fully .Owned and supported the arguments raised by the learned counsel for the complainant and submitted that it is a daylight occurrence and the F.I.R: was lodged without any delay. The learned State counsel further argued that the role of accused-persons has been fully ascribed to them in the F.I.R. And the eye-witnesses have also been named therein. The learned State counsel, pointed out that the statements of eye-witnesses are clear and cogent which- have been fully corroborated by strong supportive evidence. The learned counsel for the State agitated that the possession of the complainant upon the disputed land is also admitted by the accused-party. The learned State Counsel laid great stress upon the point that the accused fired a straight shot upon the deceased with the intention to do away with his life; therefore it is a case of Qatl-e-Amd and not a case of accidental death, in this view of the matter, the sentence awarded by the trial Court to Israr Hussain accused may be upheld.
25. ' I have carefully taken into consideration the points canvassed by the learned counsel for the parties, . After perusing the record made available with care. In the instant case, the occurrence took place'on 14-9-2005 at 4-00 p.m. And the F.I.R. Was registered at 5-30 p.m. On the same day.
26. The convict-appellants have been nominated and clear role has been attributed to them in the F.I.R.
27. ' Zulfiqar Hussain Shah complainant (P.W. 1) categorically stated that on 14-9-2005 at 4-00 p.m.
28. When he along with Mushtaq Hussain Shah, Zaffar Hussain Shah (deceased) and Naveed Hussain Shah proceeded to the land possessed by them for cutting grass, the accused-party waylaid. As soon as, they reached at the spot Tazeem Hussain Shah while raising a Lalkara launched an attack upon them. Tazeem Hussain Shah called Israr Hussain Shah, who had a .12 bore gun in his hands, and ordered him to fire a shot upon Zaffar Hussain Shah, thereupon Israr . Hussain Shah fired a shot upon Zaffar Hussain Shah with the intention to do away with his life. The shot hit him on his left thigh who fell down. Israr Hussain Shah again loaded the gun and fired another shot which missed the target. The complainant-party tried to rescue Zaffar Shah but the accused-party started pelting stones. They sent Naveed Shah to bring a cot. When he went closer to Zaffar Shah, Abbas Shah, accused, pelted a stone, which hit him on right side of his head. Meanwhile, Naveed Shah bfought a cot and other relatives also reached at the place of occurrence after hearing hue and cry and sound of firing. On seeing his relatives coming to the place of occurrence, the accused, fled away.
29. The complainant further contended that besides him, the occurrence was also witnessed by Mushtaq Shah and Naveed Shah. The complainant also testified that he filed the F.I.R.
30. ' Exh.PA at police station but the fact of filing F.I.R. Was not challenged in cross- examination; however, the complainant denied the suggestion that the complainant- party launched an attack upon Tazeem Shah accused whereupon ,his son Israr Shaji came from the house of Sikandar to rescue his father, who fired in air land during scuffle and snatching away rifle, the fire hit Zaffar Shah.
31. ' Mushtaq Hussain Shah (P.W.2) and Naveed Hussain Shah (P.W.3), the eyewitnesses, have fully supported the above- mentioned statement of complainant.
32. ' A close scrutiny of the aforesaid ocular versions reveals that the time and day of occurrence, the presence of both the parties at the spot, the presence of gun in the hands of Israr Hussain Shah principal accused and firing shot upon the deceased with the same gun are admitted on the part of defence in the light of cross- examination, suggestion put to the eyewitnesses and the defence version advanced in shape of defence evidence and statements of accused-persons on oath, as required by section 340(2), Cr.P.C. And the explanation furnished by them during their examination under section 342, Cr.P.C.
33. ' It is admitted on the part of the defence that weapon of offence, .12 bore rifle, owned by Tazeem Hussain Shah, accused, was recovered from the house of accused. The recovery of aforesaid weapon of offence is also admitted to Israr Hussain Shah, accused, during, his statement recorded under section 342, Cr.P.C. in spite of that Shah Peer Shah (P.W.6) and Aftab Hussain Shah (P.W.7) have categorically stated that rifle P.3 was recovered at the pointation of Israr Hussain Shah, accused.
34. ' It also transpires from the report of Forensic Science Laboratory Exh.PHH that crime empty of .12 bore gun had been fired from the said gun P.3 recovered at the instance of Israr Hussain Shah, accused. Similarly, the seizure of bloodstained earth and an empty from the scene of occurrence has been testified by Bashir Hussain Shah (P.W.4) and Imtiaz Hussain Shah (P.W.5), which proves that in fact the occurrence took place in the land which is under the possession of complainant party wherefrom they wanted to cut grass and not in the rooms of Tazeem Hussain Shah co- accused. The site plan Exh.P.I further strengthens the case of prosecution which also specifies the place of occurrence. The injury form of deceased Exh.PK and the inquest report Exh.PG are-also in nature of confirmatory evidence. The medical evidence further corroborates the prosecution story.
35. Dr. Faisal Hameed (P.W.9) testified the postmortem report Exh.PH who found the gun shot injury exactly on the same part of the body of the deceased whereat the ocular version alleges. The recovery of bloodstained clothing of the deceased and the pellets extracted from the body of the deceased during the post-mortem are also in nature of supportive evidence.
36. ' It will not be out of place to mention here that besides the above mentioned corroboratory and confirmatory evidence, the accused-persons have not denied the recoveries and simply submitted that the poliqe has proceeded under law. Israr Hussain Shah, accused, has categorically explained in his examination under section 342, Cr.P.C. That shot was fired from the gun P.3 recovered at his instance. He has also admitted the report of Chemical Examiner as correct. Therefore, ocular version of the P.Ws. Has been fully supported by sufficient corroboratory evidence. In view of the above discussion, only the manner of occurrence has been disputed by the defence. According to the prosecution, Israr Hussain Shah fired a straight shot upon the deceased whereas according to the defence, shot hit the deceased during the scuffle between the parties. In such state of affairs, the burden of proof shifts upon the defence instead of prosecution. I am aware of the fact that it is always the bounden duty of the prosecution to prove its case beyond any shadow of reasonable doubt in the aforesaid situation the onus of proving different manner of occurrence, the existence of circumstances bringing the case within any of general exception will be upon the defence. In this regard, I am fortified by a case reported as Abdul Razzaq and another v. The State. 1984 PCr.LJ 1039.
37. ' For the sake of arguments, if above stated position is not acceptable even otherwise the ocular account of prosecution is clear, consistent and truthful, which has been fully supported by the ample confirmatory evidence.
38. ' There is another element in the case, which creates even more difficulty for the defence, i.e, the inconsistent and different version taken by the accused- I persons during the trial. No doubt, an accused can setup any version but it has to be determined by the Court whether the same is reasonable and plausible. It is quite clear on the record that Israr Hussain Shah, principal accused, took the version at the time of framing of charge in the manner that he fired in 'the air so that the complainant party could not kill his father, meanwhile Zulfiqar Hussain Shah tried to snatch away rifle from him and during the scuffle a fire hit Zaffar Shah and,he died due to excessive bleeding but during the examination under section 342, Cr.P.C. He simply refuted the prosecution evidence and submitted that the police has changed the place of occurrence. He did not mention whether he fired in the air or the complainant tried to snatch away rifle from him or during scuffle a fire hit to Zaffar Hussain Shah who died due to excessive bleeding but during his statement recorded under section 340(2), Cr.P.C. He deposed that he tried to snatch away rifle from Zulfiqar Shah and during snatching away rifle a shot was fired. He further stated that the fact of making aerial fire deposed by him at the time of framing charge, is a lie.
39. ' Siddique Hussain Shah (D.W.l) who reached at the spot after half aii hour of the occurrence also supports the prosecution version about the place of occurrence. He stated that the place of occurrence is situated 80 yards away from the courtyard of the rooms of Tazeem Hussain Shah, accused.
40. ' Wahid Hussain Shah (D.W.2) and Shafqat Hussain Shah (D.W.3) son of Siddique Hussain Shah (D.W.l) have also supported various aspects of the prosecution case particularly the recovery of gun in presence of Shah Peer Shah and Aftab Hussain Shah P.Ws. And the presence of both the parites at the place of occurrence. Shafqat Hussain Shah (D.W.3) also deposed in an unequivocal manner that at the time of recovery of gun, Israr Hussain Shah accused admitted that it is the same gun by which he killed Zaffar Shah.
41. ' In the light of above discussion, when both the prosecution and defence versions are taken into juxtaposition in its j true perspective, the version setup by the defence seems to be improbable, fake and concocted in view of the evidence and circumstances. It is necessary to mention here that the eye-witnesses were found Adil in purgation. The ocular testimony of the prosecution witness is truthful and worthy of credence. The main and important features of the prosecution case were not challenged during the cross-examination by the defence. It, therefore, follows that the prosecution has succeeded to prove that the occurrence took place in the manner as alleged by the prosecution and not. As suggested by the defence. In this manner, the prosecution has brought guilt home to the convict-appellants. I may add here that the motive as setup by the prosecution fully supports its version that Zaffar Shah was done to death because the accused party wanted to dispossess the complainant party from the land under their possession.
42. ' The contention of the learned counsel for the defence does not appear to be well founded that non-recovery of grass, sickle and 'Chader' is fatal to the prosecution case. Similarly, it cannot be presumed that grass cannot grow in jungle; therefore, the complainant-party did not go to the disputed land for cutting the grass.
43. ' I do not find much substance in this contention of the learned counsel for the defence that the Injury was inflicted at thigh, which shows that the intention of the accused was not to murder Zaffar Shah because if this was so then he would have fired upon vital parts of deceased like chest or abdomen; therefore, according to the, learned counsel for the accused, it is not a case of intentional murder rather it comes in purview of Qatl-e-Khita; therefore, Israr Hussain Shah, accused, utmost can be awarded the sentence of 'Diyyat' and not the sentence of death. Suffice to note that the accused fired a shot with .12 bore gun which could easily determine the intention of the accused. The bullet injury was also sufficient to cause death in ordinary course of nature.
44. Therefore, it cannot be said that the accused did not commit Qatl-e-Amd. In the instant case, the prosecution has proved its version beyond any shadow of reasonable doubt. It was also suggested to I.O. That crime was committed due to sudden provocation. It needs to be emphasized that possibility of provocative occurrence on account of losing self-control must be supported through positive circumstances and cogent evidence and not on the basis of presumptive assumptions, ' Now the question arises whether the defence version should be ignored because the accused has disputed only the manner of occurrence and according to him the shot was fired during scuffle. No doubt, it is a general principle of criminal law that if conviction is based upon defence version then same has to be believed or rejected in toto and it cannot be accepted in piecemeal, 2005 YLR 1757 and 2006 YLR 209, but there is an exception to it, i.e, where a part of accused' statement is found to be palpably false that part can be rejected and rest of it can be accepted and if the accepted part of statement discloses commission of offence it can form safe basis for his conviction accordingly.
45. Ordinarily, therefore, conviction of an accused based solely on his statement would not be illegal if there exist circumstances to warrant such a course. My this view finds support from a case reported as Anokha Masih etc. v. The State 1990 ALD 472. Coming to the present case, if the statement of convict-appellant is totally accepted, then there appears to be no justification for the appellant to bring gun from his house and firstly fire in air. In the cas'e in hand, therefore, at least the defence evidence, the statement of convict-appellants, recorded under section 342, Cr.P.C., which are' admissible in evidence, and their statements recorded under section 340(2), Cr.P.C. Can be relied upon and used as good corroboration of ocular testimony to prove their participation in the offence. On this account, the defence plea is untrue and cannot be believed and the same was rightly rejected by the trial Court. Therefore, I would hold that the appellant had no right of .Self- defence or defence of property whatsoever. Consequently, their conviction has been rightly recorded by the trial Court.
46. ' As far as the case of Abbas Shah, accused, is concerned, in this regard, the statements of Zulfiqar Hussain Shah and Mushtaq Hussain Shah eye-witnesses are clear and consistent but these were not challenged in the cross-examination by the defence, therefore, it will be dedmed to be admitted. 2005 SCR 288. Zulfiqar Hussain Shah (P.W.l) was medically examined vide medical examination report Exh.PJ, which was duly proved by doctor P.W. But he was also not crqss- examined on the aforesaid point. Therefore, the sentence of one year awarded to Abbas Shah, accused, by the trial Court is also maintained.
47. ' So far as the case of other accused- persons, Tazeem Hussain Shah, Sarfraz Hussain Shah and Iftikhar Hussain Shah is concerned, they have not been found involved in the commission of offence. No overt act has been ascribed to them; therefore, they were rightly acquitted of the charge by the trial Court.
48. ' It transpires from the perusal of impugned judgment that benefit under section 382-B, Cr.P.C. Was neither extended nor refused by the Court below to convict-appellants. It is admitted principle of law that the consideration of extension of benefit under section 382-B, Cr.P.C. Is mandatory but awarding the concession is discretionary 2001 PCr.LJ 225. Therefore, in view of the facts and circumstances of the case, the benefit of section 382-B, Cr.P.C. Is extended in favour of the convict- appellants.
49. ' The authorities referred to by the learned counsel for the parties are beyond the controversial issue and have nothing common to the facts of present case.
50. ' The nutshell of the above discussion is that in my opinion the case against convict-appellants, Israr Hussain Shah and Abbas Shah stands fully proved on the record beyond any shadow of doubt. Therefore, the appeal filed by the convict- appellants is dismissed. The counter appeal filed by the complainant fails which is also dismissed. The reference is answered in affirmative. A copy of the judgment shall be sent to convict-appellant in jail.