' KAZIM ALI MALIK, J.---We propose to dispose of Murder Reference No,570 of 2002, Crl. Appeals Nos.
432 of 2002, 445 of 2002, 558 of 2002 and 546 of 2002 by this single judgment as all these matters stem out of judgment dated 30-5-2002 passed by a learned Additional Sessions Judge, Lodhran in a case F.I.R. No,215 of 1998 registered at Police Station Kahror Pakka, District Lodhran.
2. Khalil ur Rehman, complainant P.W.12, lodged the F.I.R. (Exh.PL) at Police Station City Kahror Pakka, Distt. Lodhran at 12-10 a.m. On 28-4-1998 about the occurrence, which took place on 27-4-1998 at 10-11-00 p.m. Within the area of Basti Bahawal Garh, four miles away from the police station. Abdul Aziz (40), a brother of the complainant suffered death in his own house where he had gone asleep along with other family members while his wife Mst. Mumtaz Mai, P.W.4, sustained injuries, when she physically intervened to save him. The nominated accused persons accompanied the unknown accused, who committed the crime of murder and attempted murder. According to the first version set up in the F.I.R., the following persons accompanied the unknown killer at relevant time:-- -
1. Muhammad Siddique armed with pistol,
2. Muhammad Hanif armed with stick, and
3. Allah Ditta armed with pistol.
' Admittedly, the above named three real brothers did not cause any injury to Abdul Aziz, deceased or his injured wife Mst. Mumtaz Mai. It was their unknown companion, who allegedly fired at the deceased and the injured P.W. The only allegation against the nominated accused persons was that they remained present at the spot when their unknown bulky co-accused committed the crime of murder and attempted murder by firing at Abdul Aziz and his wife. As a result of his investigation, Barkat Ali, S.H.O, P.W.13, concluded on 29-6-1998 that Muhammad Siddique, Muhammad Hanif and Allah Ditta sons of Ghulam Muhammad, accused persons were innocent as they neither reached the spot at relevant time nor participated in the occurrence. The complainant party also accepted the result of investigation in their favour. The investigator further concluded ;hat Muhammad Akbar alias Abbi, Manzoor son of Ghulam Rasool and Muhammad Akram alias Akri already under arrest in another case F.I.R. No,131 of 1998 under section 342, P.P.C. Registered with police station Abbas Nagar, Distt. Bahawalpur, were the actual Culprits, who had committed the murder of Abdul Aziz and had made murderous assault on his wife. On 10-7-1998 another accused; namely, Muhammad Iqbal Rid was arrested in this case. In this way seven accused persons were introduced, three by the complainant and four by the police, out of whom Allah Ditta, accused did not make himself available for investigation and trial and was declared as proclaimed offender while the remaining six accused were convicted and sentenced on conclusion of trial as under:-- ' MUHAMMAD AKBER ALIAS ABBI: ' Under section 302(b), P.P.C.--- Sentenced to death and also to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or to suffer six months rigorous imprisonment in default of payment of compensation.
' Under section 324 P.P.C.---Seven years' rigorous imprisonment and to pay Arsh amounting to Rs,25,000 or in default of payment of. Arsh to further undergo three months simple imprisonment.
' Muhammad Akram, Muhammad Iqbal, Manzoor ' Ahmad, Muhammad Hanif and Muhammad Siddique:--- ' Under section 458/ 148/ 149, P.P.C. ---Ten years rigorous imprisonment each with a fine of Rs,25,000 each and in case of default thereof to further three months simple imprisonment each.
' Muhammad Akram, Muhammad Iqbal and Manzoor Ahmad:-- ' Under Section 302/148/149, P.P.C.--- To suffer imprisonment for life each.
' Benefit of the provisions of section 382-B, Cr.P.C, was also granted and sentences of imprisonment were directed to run concurrently.
3. The prosecution case disclosed in the F.I.R., Exh.PL, in brief, was that on 26-4-1998 Mst. Mumtaz Mai, injured P.W.4 and her daughter Mst. Rabia, P.W.5, were returning home after having reaped wheat crop when on their way Muhammad Siddique, appellant along with Muhammad Bilal, a minor tried to take their snaps upon which Mst. Mumtaz Mai, injured P.W. Abused and reprimanded them. Muhammad Siddique, appellant, extended threats that he would take away Mst. Rabia, P.W.5 within days. On the night between 27/28-4-1998 Khalil-ur- Rehman complainant, Abdul Aziz deceased, Mst. Mumtaz Mai, P.W.4 and Mst. Rabia, P.W.5 along with other inmates of the house slept in the courtyard as usull. At about 10/11-00 p.m. Khaiil-ur-Rehman, complainant woke up on hearing some noise and saw in the lantern light that Muhammad Siddique, appellant, Allah Ditta, (proclaimed offender) armed with pistols, Muhammad Hanif, appellant having stick and an unknown bulky accused armed with rifle had been asking Mst. Rabia Bibi, P.W.5 to accompany them. Abdul Aziz, deceased and his wife Mst. Mumtaz Mai, physically intervened in order to save their daughter Mst. Rabia Bibi from clutches of the said accused when unknown bulky accused fired rifle shot striking Abdul Aziz on his left thigh, testis and penis upon which he fell down.
Thereafter, the unknown accused again fired two successive shots hitting Abdul Aziz on his right leg and right hip. Mst. Mumtaz Mai, P.W.4 proceeded ahead to rescue her husband when the unknown accused fired hitting her left flank followed by another shot which struck her on the right hand.
Thereafter, the accused persons fled while leaving a pair of shoes at the spot. Abdul Aziz succumbed to his injuries at the spot. The complainant removed Mst. Mumtaz Mai, injured P.W. To the police station while leaving Mst. Rabia. P.W.5 and his neighbours at the spot to guard the dead body of Abdul Aziz and lodged the F.I.R, The injured P.W. Though present in the police station was, however not examined by the investigation agency under section 154 or 161, Cr.P.C.
4. On 28-4-1998 at 7-00 a.m. Dr. Muhammad Maqbool, P.W.9 made autopsy on the dead body of Abdul Aziz and found the following injuries;
(i) A lacerated wound 7 c.m. x 1 c.m. x skin deep on the right cheek.
(ii) An abrasion 2.5 c.m. x 1 c.m. On the back of right fore-arm 6 c.m. Above from right wrist joint.
(iii) A lacerated fire-arm wound of entry 1 x 1 c.m. x going deep with inverted margin on the upper part of the left thigh at anterolateral position. Another lacerated firearm wound of exit 3 c.m. x 2 c.m. On the back of right buttock 8 c.m. Later to prinCal region.
(iv) Lacerated fire-arm wound of entry 1 c.m. x 1 c.m. x going deep on the medial side of right upper leg just below the right knee joint.
Another lacerated wound of exit 4 c.m. x 2 c.m. On the back of the right knee joint.
(v) There were multiple injuries (3 in number) on the back side of penis and on the front of testis which lacerated skin, each measuring 1 c.m. x 1 c.m. x skin deep.
' On dissection left femoral blood vessels, right tibia and right popliteal vessels were found injured and damaged.
' In the opinion of the doctor, the cause of death was haemorrhage and shock due to damage to the above said vessels caused by injuries Nos.3 and 4, which were also sufficient to cause death in ordinary course of nature. Injuries Nos. 1 and 2 were with blunt weapon while remaining injuries were the result of fire-arm. Probable time which elapsed between injuries and death was within 15 to 30 minutes and between death and autopsy was within 8 to l2 hours. Under his post-mortem report, Exh.PD, the doctor confirmed that Abdul Aziz died of fire-arm injuries.
' On the same day Dr. Firdous Yasin, P.W.8 medically examined Mst. Mumtaz Mai, P.W.4 and noticed the following injuries on her person:---
(i) A lacerated fire-arm wound of entry 6 c.m. x 2 c.m. Going deep in the right side of front chest just above and medial to right nipple.
(ii) A lacerated fire-arm wound of exit 15 c.m. x 6 c.m. x going deep on left side of lower chest and abdomen, 8 c.m. Lateral to umblicus.
(iii) A lacerated fire-arm wound of entry 1 c.m. x 1/2 c.m. x going deep on palm of right hand.
(iv) Lacerated fire-arm wound of exit 3 c.m, x 1/2 c.m. On the back on the base of right little finger.
(v) An abrasion 1 c.m. x 1 c.m. Of left eye.
' The examinee was cautious and well oriented in time and space. For her better treatment she was referred to Nishtar Hospital, Multan.' The medical examiner recorded report, Exh.PC, in this regard.
6. After recording the F.I.R., Exh. PL, Barkat Ali, S.H.O. P.W.13, reached the spot, prepared injury statement, Exh.PD/3 and inquest report Exh.PD/2 about Abdul Aziz, deceased. He also prepared injury statement, Exh.PC/1 in respect of Mst. Mumtaz Mai, injured and then sent her to Civil Hospital, Kahror Pakka for medical examination. He prepared rough site-plan, Exh.PM and also recorded supplementary statement of the complainant whereby he implicated another set of accused not in line with the F.I.R. The Investigating Officer secured bloodstained earth under memo. Exh.PJ, from the place where Abdul Aziz succumbed to his injuries. He also collected blood-stained earth vide memo. Exh.PK, from the place where Mst. Mumtaz Mai, P.W. Had sustained injuries. Six crime empties of 222 rifle (P.3 to P.8) and two live rifle cartridges (P.9 and P.10) lying at the spot were also seized under memo. Exh.PE. Lock (P.11) and lantern (P.12) were also taken into possession by means of memos. Exh.PE to Exh.PG, respectively. Pair of shoes (P. 13/1-2) allegedly left by one of the accused persons at the spot was secured vide memo. Exh.PH. After post-mortem examination, the escorting constable Fayyaz Hussain, produced last worn clothes of the deceased, which were taken into possession vide memo. Exh.PA.
' On 26-5-1998 the investigator reached police station Abbas Nagar, Distt. Bahawalnagar and found Muhammad Akbar alias Abbi, Manzoor and Muhammad Akram alias Akki confined in police lock up in a case F.I.R. No,131 of 1998 under section 342, P.P.C, and a case F.LR. No,132 of 1998 under section 13 of the Arms Ordinance, 1965. The investigator collected necessary information from the S.H.O., police station Abbas Nagar regarding the above named accused persons and then came back after having interrogated them.
' On 31-5-1998, Muhammad Siddique and Muhammad Hanif, accused persons were arrested. They both produced unlicensed pistols though not used in the occurrence.
' On 2-6-1998 the investigator initiated legal proceedings to get transferred Muhammad Akber alias Abbi, Manzoor Ahmad and Muhammad Akram alias Akri, appellants from Police Station Abbas Nagar, Distt. Bahawalnagar to Police Station City Kahror Pakka, District Lodhran, but could not complete the same for one reason or the other. Mst. Mumtaz Mai, injured P.W. Made her statement about the occurrence for the first time on 5-6-1998, which had taken place on the night between 27/28-4-1998. On 15-6-1998 Nazar Muhammad, Patwari, P.W.6 produced the scaled site-plan, Exh.PB, On 27-6-1998 Muhammad Akber alias Abbi, Manzoor Ahmad and Muhammad Akram alias Akri, appellants/accused persons already in custody in other cases of District Bahawal Nagar, were arrested in this case. On 10-7-1998 Muhammad Aslam (not examined P.W) joined investigation and implicated Muhammad Iqbal Rid, appellant as an accused with the claim that he had also participated in the occurrence. On 13-7-1998, the investigator concluded that evidence to the extent of Muhammad Siddique, Muhammad Hanif and Allah Ditta, appellants (nominated in the F.I.R.) was deficient and as a matter of fact the newly added accused persons had committed the crime.
7. At the inception of trial, the two nominated (Muhammad Siddique and Muhammad Hanif) and the four newly added accused persons (Manzoor, Muhammad Akram alias Akri, Muhammad Akber alias Abbi and Muhammad Iqbal) were jointly charged under sections 458/ 302/324/148 read with 149, P.P.C, to which they pleaded not guilty and claimed trial.
8. The prosecution examined 14 P.Ws, in all in support of the charge.
9. Iftikhar Hussain, Constable, P.W.1 transmitted sealed parcels of blood-stained earth and crime empties to the concerned office. Fayyaz Hussain, constable, P.W.2 got post mortemed the dead body of Abdul Aziz and attested recovery memo, of last worn clothes. Abdul Ghaffar, A.S-I., P.W.3 kept ''the sealed parcels in safe custody till their onward transmission to the concerned office. Mst.
Mumtaz Mai, P.W.4 Mst. Rabia P.W.5 Zubair Ahmad, P.W.10 and Khalil-ur-Rehman, P.W.12 furnished ocular account of the incident. The former mentioned two P.Ws, also deposed about the motive.
Nazar Muhammad Patwari, P.W.6 proved the scaled site-plan. Saeed Ahmad, P.W.7 identified the dead body of Abdul Aziz before the post-mortem examiner and attested recovery memo, of last worn clothes. Mushtaq Ahmad, P.W.11 also attested the above said recovery memos. Barkat Ali.
S.H.O. P.W.13 and Muhammad Arshad, investigator, P.W.14 proved their respective investigation.
10. When examined under section 342, Cr.P.C, the convict/appellants dismissed each piece of evidence put to them and pleaded innocence, however without raising any specific defence plea.
They also did not lead defence evidence. .
11. Learned counsel for the convicts have argued that it was/is a case of no evidence and that the learned trial Court recorded conviction and sentence against the appellants without any legal basis. On the other hand, learned Law Officer has supported the impugned conviction and sentence. We have heard both sides and perused record.
12. We find it convenient to take up the case of Muhammad Siddique and Muhammad Hanif sons of Ghulam Muhammad, appellants, first, who had been nominated in the F.I.R, with an allegation that while being armed with pistol and stick respectively they trespassed into the house of Abdul Aziz, deceased on the fateful night along with an unknown bulky accused, who fired rifle shots at the deceased and his wife in their presence. There was no allegation of active participation in the occurrence against them. Leamed counsel for these appellants vehemently argued that the prosecution half heartedly prosecuted them before the trial Court by producing shaky and sketchy evidence and that the trial Court recorded impugned conviction and sentence by giving benefit of doubt to the prosecution. Now, we propose to examine, analyze and scrutinize the prosecution evidence in order to ascertain as to whether or not the prosecution succeeded to prove the charge against the appellants under discussion beyond any shadow of doubt. While lodging the F.I.R.
Khalil-ur-Rehman, complainant claimed that one day before the occurrence, Muhammad Siddique, appellant and one Muhammad Bilal aged 10 years (not an accused or P.W. Of this case) attempted to take snaps of Mst. Mumtaz Mai, P.W.4 and her daughter Mst. Rabia, P.W.5, when they were on their way back to home from, their field. At trial, Mst. Mumtaz Mai P.W.4 improved upon her first version before the investigator and deposed that Muhammad Hanif, appellant was also with Muhammad Siddique, appellant and aforementioned Bilal (minor) at relevant time. Mst. Rabia P.W.5 also made a similar statement at trial not in line with her previous statement under section 161, Cr.P.C. In other words the statements of Mst. Mumtaz Mai and Mst. Rabia Mai, P.Ws, at trial qua the motive part of the incident are not in line with that of the complainant's first version set up in the F.I.R.. This state of affairs has adversely affected the prosecution case.
13. This is matter of record that Muhammad Siddique and Muhammad Hanif, appellants did not touch Abdul Aziz, deceased and his injured wife, Mst. Mumtaz Mai. The only allegation against them, in brief, was that they remained present at the scene of crime while armed with stick and pistol.
Had these appellants trespassed into the house of the deceased at night after having armed themselves with deadly weapons and had they been possessed with alleged motive, they would have actively participated in the occurrence. The role of mere presence at the spot like spectators attributed to these appellants, appears to be doubtful in the given circumstances.
14. The complainant, P.W.12 alleged in the F.I.R, that Muhammad Siddique, Muhammad Hanif, appellants and Allah Ditta, absconder reached the spot along with an unknown bulky accused armed with rifle and that in their presence, the unknown accused fired at the deceased and his wife. At trial, the P.Ws, took U-turn and introduced reshaped version altogether different from the first stance, to the effect that (i) Muhammad Akber alias Abbi, (ii) Muhammad Akram alias Akri (iii)
Manzoor and (iv) Iqbal {convicts) accompanied the nominated accused and committed the crime. In this way the P.Ws, got challaned four accused persons agaitist the role initially attributed to only one unknown bulky accused. There is no explanation as to how and on what basis the P.Ws, increased the number of accused from one bulky unknown accused to four. The P.Ws, were cross- examined on this point when they attempted to offer a novel explanation that (i) Akber alias Abbi
(ii) Akram alias Akri, (iii) Manzoor, and (iv) Iqbal (appellants) entered the house and committed the offence while (i) Muhammad Siddique, (ii) Muhammad Hanif (appellants), and (iii) Allah Ditta (proclaimed offender) might be present outside the house i.e, spot of crime. It is painful to note that the learned Addl. Sessions Judge believed and accepted the changed and reshaped story of the P.Ws, and made it the basis of impugned conviction and sentence on capital charge. Hence, we are in agreement with the learned counsel for the appellants that the trial Court gave benefit of doubt to the prosecution instead of the accused.
15. Mst. Mumtaz Mai, injured P.W.4 and her daughter Mst. Rabia, P.W.5 joined investigation and made statements, Exh.DA and Ex.DB respectively omitting the name of Allah Ditta, absconder.
However, at trial they both again implicated Allah Ditta, absconder with an allegation that he was also present at the spot with his brothers Muhammad Siddique and Muhammad Hanif, convicts.
The P.Ws, were duly confronted with their previous statements, Exh.DA and Exh.DB, wherein the name of Allah Ditta had not been mentioned as an accused. The learned Law Officer and learned counsel for the complainant- were g not in a position to own or disown one of (he conflicting versions of the P.Ws. In this view of the matter, we can safely ' hold that statements of the witnesses qua the role of the appellants are not truth inspiring.
16. At investigation stage, Mst. Mumtaz Mai, P.W.4 and her daughter Mst. Rabia Mai, P.W.5 cast doubt against Muhammad Siddique and Muhammad Hanif, appellants, in their statements (Exh.DA & Exh.DB) by saying that Muhammad Siddique ' and Muhammad Hanif, (appellants) might have participated in the occurrence. Key lines of their earlier statements Exh.DA and Exh.DB with which the witnesses were duly confronted at trial, are reproduced in verbatim which read as under:- {{URDU TEXT}} During course of investigation these witnesses were not certain and definite about participation of those appellants in the crime. However, at trial they involved these appellants with the claim that they were also present at the spot at relevant time and that in their presence, the co-appellants committed the crime. The learned trial Court believed the changed stance of the P.Ws, though it was not in line with the first version laid before the investigator and with which they were confronted at trial. As the P.Ws, made dishonest improvements over their previous statements Exh.DA & Exh.DB when they were equipped with legal advice/assistance, therefore no importance can be attached to their subsequent stance qua the role of appellants.
17. A perusal of the record would show that the investigator exonerated Muhammad Siddique and Muhammad Hanif, appellants of the charge in the light of statements of the prosecution witnesses.
With the consent of eye-witnesses, these appellants were not challaned to Court by the investigating agency. After submission of challan in Court, the eye-witnesses on re-consideration chose to prosecute them. We are not unmindful of the fact that result of investigation and opinion of investigator favourable to the accused are neither relevant nor admissible in evidence yet in the given circumstances we can safely hold that the result of investigation adverse to the prosecution case qua the role of Muhammad Siddique and Muhammad Hanif, appellants being based on solid material (i.e, Exh.DA and Exh.DB) adversely affected and diminished evidentiary value of changed and reshaped stance of the eye-witnesses.
18. Learned counsel for the complainant attempted to argue that Muhammad Siddique and Muhammad Hanif, appellants led to the recovery of pistols which corroborated ocular account furnished by the eye-witnesses. The contention is misconceived for two reasons. Admittedly, Muhammad Siddique, appellant did not fire at the deceased or the P.Ws, with the pistol with which he was allegedly armed at relevant time or which he allegedly got recovered. Hence, the pistol cannot be treated as weapon of offence. Muhammad Hanif, appellant was allegedly armed with a Sota and it is not understandable as to how the investigator planted recovery of pistol against him in support of the charge of murder. Secondly, it is the prosecution case that these appellants did not even touch the deceased or any of the P.Ws. Excepting mere presence at the spot, there was no other allegation against them. In this view of the matter, the recovery of pistols is of no significance.
19. F G Now we take up the case of Muhammad Iqbal son of Muhammad Amin, appellant who was neither named in the F.I.R, nor involved in the case during first phase of investigation. On 7-10-1998, Barkat Ali, S.H.O., P.W.13 introduced Muhammad Iqbal, appellant as one of the culprits on the only ground that he had abducted one Muhammad Aslam and that the later made a statement under section 161, Cr.P.C, that he learnt during the days of his abduction that his abductor had also committed the murder of Abdul Aziz. There was no other evidence whatsoever against Muhammad Iqbal, appellant. Muhammad Aslam, P.W., on whose solitary statement under section 161, Cr.P.C.
Muhammad Iqbal, appellant was arrested and challaned to Court, did not enter the witness-box at commencement of trial. He was not previously known to the P.Ws, who implicated him at trial.
Admittedly, he was not put to the test of identification parade. It is shocking to note that claim of the P.Ws, that they identified Muhammad Iqbal, appellant as the culprit during his detention in police lock-up, found favour with the learned Addl. Sessions Judge, resulting in his conviction and sentence. It appears that the learned Addl. Sessions Judge did not have adequate knowledge of criminal law. Here we must say that the learned Sessions Judge, Lodhran should not have made over the matters of life and death to such an Addl. Sessions Judge not well versed in criminal law.
20. Now adverting to the case of Akber alias Abbi, Manzoor Ahmad and Akram alias Akri, appellant it is noteworthy, at the very out set that they were not previously known to the eye-witnesses nor were they named in the F.I.R, These accused persons were arrested by Bahawal Nagar police in some other cases and the investigator of this case got them transferred from Bahawal Nagar to Lodhran and challaned them to Court without putting them to the test of identification parade.
Mushtaq Ahmad, P.W.11 claimed that he identified these accused persons when they had been detained in lock up of Police Station Abbas Nagar, Distt. Bahawal Nagar. It is thus clear that it was the investigator, who had shown these appellants to the P.Ws, during their detention in police lock up. In absence of their identification parade, the charge against the appellants falls to the ground.
21. While lodging the F.I.R, and during first phase of investigation the case of the prosecution was that three nominated (i) Muhammad Siddique, (ii) Muhammad Hanif and (iii) Allah Ditta and one unknown accused had reached the spot out of whom the unknown accused fired at the deceased and his wife. At some later stage, the investigator increased the figure from 4 to 7 and that too without collecting legal evidence against the newly added accused. When confronted with the conflicting prosecution versions, the learned Law Officer was possessed with no answer and was not in a position to own the first version set up in the F.I.R, or the second one introduced by the investigator after many months as a result of which four appellants; namely, Akram, Iqbal and Manzoor, admittedly not known to the P.Ws, were challaned to Court without putting them to the test of identification parade.
22. The learned Law Officer attempted to argue that Akber alias Abbi, appellant fired at the deceased and Mst. Mumtaz Mai, P.W. And that statement of injured before the police as well as at trial conclusively established that Akber alias Abbi, appellant and none else committed the crime.
For two reasons, we would say without any fear of contradiction that the contention is misconceived. Firstly, Akber alias Abbi, appellant was admittedly not known to the P.Ws, including the injured woman. Hence, it was must for the investigator to put Akber, .Appellant to the test of identification parade. In absence of the evidence of identification parade, the claim of the witnesses that they identified him in the police lock up of Police Station Abbas Nagar, Distt. Bahawal Nagar, demolished the charge. Secondly, Mst. Mumtaz Mai, P.W. Made her first statement before the investigator about 1-1/2 months after the occurrence. She attempted to cover inordinate delay by saying that she remained unconscious, Her explanation stands rebutted and repudiated by the medical evidence and the F.I.R, itself. The complainant alleged in the F.I.R, that Mst. Mumtaz Mai, injured was with him when he lodged the F.I.R, at the police station. The available record does not show as to why the investigator did not examine her at the police station immediately after recording the F.I.R. The investigator deposed that he prepared injury statement of Mst. Mumtaz Mai, P.W. At the spot and then sent her to the hospital for medical examination. The available record does not tell as to why the investigator did not examine her at the police station and chose to shift her to the spot of preparation of her injury statement. Similarly, there is no answer as to why the investigator did not record her statement before sending her .To the hospital. The medical examiner certified at trial that Mst. Mumtaz Mai, P.W. Was conscious and well oriented in time and space. There is no evidence on the file whatsoever which may show that Mst. Mumtaz Mai, injured P.W. Remained unconscious for months. The prosecution is -possessed with no explanation as to what were the special and compelling circumstance which prevented the investigator from recording the statement of the star prosecution witness Mst. Mumtaz Mai for more than a month, particularly when she appeared before him along with the complainant at the time of lodging the F.I.R, and also at the time of spot inspection. In the circumstances the only logical conclusion would be that either the injured herself refused to make a statement or the investigator had delayed her examination for 1-1/2 months, for the reasons best known to both of them. Be that as it may delayed statement of the injured against unknown accused already in custody in other cases without their identification parade, did not provide a legal justification to record their conviction.
23. This is an established principle of law that benefit of doubt, however, slight is L right of the accused. In the case in hand, the learned trial Court disregarded and violated this. Established principle of law and recorded impugned conviction and sentence on the basis of surmises and conjectures by giving the benefit of doubt m to the prosecution. We are unable to approve of the reasons, which weighed with the learned trial Court while recording the conviction and sentence, now under challenge.
24. For what has been stated above, we accept Crl. Appeals Nos. 432 of 2002, 445 of 2002, 546 of 2002 and 558 of 20O2, set aside the impugned convictions and sentences imposed on the appellants and acquit them of the charge.
25. Muhammad Akber alias Abbi, appellant is in jail. He be set at liberty forthwith, if not required to be detained in any other case.
26. Muhammad Siddique, Muhammad Hanif, Muhammad Iqbal, Manzoor Ahmad and Muhammad Akram, appellants are on bail and they stand discharged of their bail bonds.
27. Murder Reference No,570 of 2002 is answered in the negative.
28. Death sentence is not confirmed.