' SHAHID ANWAR BAJWA, J.---This is an appeal against the judgment dated 13-1-2007 by the Anti- Terrorism Court-III Sukkur for an offence under sections 302, 365-A, 34, P.P.C. And section 7 of Anti- Terrorism Act, 1997. Vide impugned judgment the present appellant was convicted and sentenced as under:-- Under section 365-A P.P.C.
' To death by hanging by neck till death; forfeiture of movable and immovable property to the government up to Rs,200,000.
Under section 302(b) P.P.C.
' To death as Tazir and payment of compensation of Rs, 200,000 to the legal heirs of the deceased and in case of default in payment of compensation to suffer R.I. For six months.
Under section 7(e) of ATA 1997.
' To death and forfeiture of movable and immovable property up to Rs, 200,000.
Under section 7(a) of ATA 1997.
' To death and fine of Rs, 200,000 and in case of default in payment of fine to suffer R.I. For 5 years.
2. This appeal was filed by the appellant and Confirmation Reference No, 2 of 2004 (New No, 4 of 2008) was received from the trial Court. Facts are that F.I.R. No, 73 of 1999 was recorded at Police Station Ghouspur, District Jacobabad on 30-10-1999 at 8-30 p.m. The complainant was one Sahib Rai. He stated that he resided with his maternal uncle Brijlal who had a son named, Aroon Kumar aged about 5 years. At about sunset time Aroon Kumar went out of the house to buy some candies.
When he did not return Sahib Rai and Brijlal came out to locate him. They searched here and there and did not find him. While they were searching one Murlidhar met them. They had reached outside the town when at 1915 hours they heard crying voice of Aroon Kumar coming from right bank of a water channel. In the light of torches they saw that Aroon Kumar was crying and the present appellant and one Haroon, (Haroon was tried and acquitted on application under section 265-K Cr.P.C.) were strangulating Aroon Kumar. On seeing the complainant and his two witnesses the accused demanded Rs, 200,000. Such demand was refused. Appellant is alleged to have given a stick blow to the head of Aroon Kumar. Aroon Kumar fell down and the appellant and co- accused escaped. The complainant and two witnesses came to Aroon Kumar and found him lying dead. Consequently complaint of kidnapping for ransom and murder was lodged.
3. The medical evidence indicated that there was a strangulation mark seen on the neck.
Depressed fracture was seen on left parietal bone with surrounding haematoma. Besides multiple abrasions and bruises were seen on face, chest, abdomen and back. Internal examination revealed that all the brain membranes were stained with blood and bloodstained collection was seen over larynx and trachea. It was opined that injury to the head as well as strangulation were sufficient to cause death. The postmortem examination was commenced at 11-00 p.m. And it was stated that time between death and postmortem was within six hours.
4. At the trial besides P.W.1 Dr. Sundro, P.W.2, Ashok Kumar who was mashir of inspection of place of wardat, preparation of inquest report, production of torches and arrest of the accused persons, P.W.3 Nazir Ahmed (P.C. At Police Station Ghouspur), P.W.4 Brijlal. P.W.5 Sahib Rai, P.W.6 Murlidhar, P.W.7 Nadeem Ahmed Khan (Judicial Magistrate before whom 164 Cr.P.C. Statements of P.W.2 Ashok Kumar and P.W. Brijlal were recorded), P.W.8, Abdullah (Investigating Officer), P.W.9, Noor Ahmed (Tapedar) and P.W.10. Gurdas Mal (mashir of various recoveries and arrest) were produced.
5. In statement under section 342 Cr.P.C. The present appellant denied all the charges. He stated that case against him was false and was as a vindictive step. He produced D. W.1 Raees Lakhan Khan who testified as to dispute between tribe of appellant and Hindu Community and D.W.2 Habibullah who also testified to the same effect. After due trial the appellant was convicted and sentenced as above. Being aggrieved by the conviction the appellant filed present appeal. This appeal was heard by a bench of this Court comprising of Bin Yameen, J and Zafar Ahmed Khan Sherwani, J. While Bin Yameen, J, modified death sentence on all the counts to imprisonment for life. It however maintained the penalty of imposition of fine as well as imposition of compensation.
Zafar Ahmed Khan Sherwani, J, held that the appellant was entitled to acquittal because the prosecution had not been able to establish case against the appellant beyond reasonable doubt.
Consequently this appeal has been in terms of the order passed by the Hon'ble Chief Justice laid before me in terms of section 429 Cr.P.C.
6. Learned counsel for the appellant made the following submissions:--
(1) Prosecution has relied upon three pieces of evidence; (a) medical evidence; (b) evidence of P.Ws. 4, 5 and 6; (c) recovery of the torches on 31-10-1999 and recovery of soli on 1-11-1999. This is an un witnessed case and F.I.R. Was lodged after due deliberations and after post mortem.
(2) There is discordance in time given by different witnesses which creates doubt. Learned counsel in this regard relied upon Ata Muhammad and another v. The State 1995 SCM R 599, Yar Muhammad and 3 others v. The State 1992 SCM R 96 and Abdullah Khan and 5 others v. The State 2008 M LD 535 to contend that it is duty of prosecution to resolve the infirmities and if prosecution fails to so resolve them the benefit must go to the accused persons.
(3) Similarly learned counsel relied upon discrepancies as to who carried dead body from the place of wardat and submitted that there is again discordance between evidence of various witnesses.
(4) As far as recovery of the torch is concerned, learned counsel submitted that firstly the identification in the light of torch is weak evidence and secondly the question regarding recovery of torches was not put to the accused during his section 342 Cr.P.C. Statement. He relied upon Sheral alias Sher Muhammad v. The State 1999 SCM R 697, Muhammad Shah v. The State 2010 SCM R 1009.
Learned counsel relied upon Suwali v. The State 1982 PCr.LJ 808 and The State v. Fazal Ahmad and another, 1970 PCr.LJ 633 to contend that recognition by voice and recognition in the light of torches is weak piece of evidence.
(5) The allegations against the appellant and the co-accused were the same and the trial Court has acquitted co-accused and has convicted the appellant. Learned counsel relied upon Ghulam Mustafa v. The State 2009 SCM R 916 and Haroon alias Harooni v. The State, 1995 SCM R 1627 in this regard.
(6) It is against human nature that if some body's minor child is being held and ransom is demanded the person would straightaway refuse.
(7) It is alleged that soti has been recovered but no blood or hair of the accused have been found on the soti. Therefore, the soti is not connected with the alleged crime.
7. Learned Additional Prosecutor-General, made the following submissions:-
(1) As far as defence of previous enmity is concerned, it is not sufficient to throw any doubt on the story of the prosecution.
(2) As far as torch and soti and recoveries thereof were concerned they were not facts in issue.
Moreover no question was put to the I.O. In his cross-examination though there is some discrepancy regarding as to who carried the dead body from the place of wardat and it does not create doubt on the actual incident.
8. Learned counsel as well as Additional Prosecutor General made submissions regarding scope of power of the Appellate Court under section 429, Cr.P.C. The said section is in the following words:- "429. Procedure where Judge of Court of Appeal are equally divided. When the Judge composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion."
9. The following case-law was submitted by the learned counsel in this regard:--
(1) Khetri Bewa v. State, AIR (39) 1952 Orissa 37.
"(3) The learned Government Advocate however, submitted that I was to form an independent opinion after a hearing, though not without taking into due consideration the two diverse opinions pronounced by the other Judges and to deliver the same on which to pass the judgment or order, as the case may be. In support of this contention he cited an authority of a decision of the Calcutta High Court in the case of Md Illias Mistri v. The King I.L.R (1949) 1 Cal.
48. I have, both in letter and spirit, followed this decision but I record my doubts as to the correctness of the dictum. In my opinion what struck me at the beginning was dictum. In my opinion what struck me at the beginning was correct, namely, that I could, unless or scrutinizing the materials on record the judgment of the Judge pronouncing in favour of innocence of the accused was considered far from fairly reasonable, or, to be more accurate, not (sic) perverse, give the benefit of reasonable doubt to the accused and acquit her. If the third Judge is bound to have a full hearing and then to arrive at a independent opinion, the Legislature should not have made it a matter of discretion by inserting the words "if any" after the words "such hearing".
(2) Pandurang and others v. State, AIR 1955 SC 216 Para 37.
"(37) That leaves the question of sentence in the case of Bilia and Tukia. It was argued that no sentence of death can be passed unless two Judges concur because of section 377, Criminal Procedure Code, and it was argued that section 378 of the Code does not abrogate or modify that provision. We do not intend to examine that here because we are of the opinion that the sentence should be reduced to transportation in these two cases mainly because of the difference of opinion in the High Court, not only on the question of guilt, but also on that of sentence. In saying this we do not intend to fetter the discretion of Judges in this matter, for a question of sentence is, and must always remain, a matter of discretion, unless the law directs otherwise. But when appellate Judges, who agree on the question of guilt, differ on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons. We see no reason to depart from this practice in this case and so reduce the sentences of death in the case of Bilia and Tukia to transportation for life because of the difference of opinion in the High Court."
(3) In re. Naraish and others, Petitioners, AIR 1959 Andhra Pradesh 313: "(15) As pointed out by the learned Public Prosecutor, there can be no doubt upon the wording of the sections 378 and 429, Code of Criminal Procedure that the whole case is before the third Judge and that he is at liberty to examine the whole evidence for himself and deliver his final opinion. The words "after such hearing if any as he thinks fit" entitle him in appropriate cases to limit the scope of the hearing. The rule of judicial etiquette pronounced by Mahmood J. In 1886 ALL WN 275 is no doubt not laid down in the Code of Criminal Procedure."
"Unless there are strong and compelling reasons to come to the conclusion that the opinion of the Judge favouring an acquittal is perverse, the golden rule is to give the benefit of doubt to the accused. The observance of such a rule does not, in my opinion, amount to an abdication of his functions as a Judge under sections 378 and 429 of the Code of Criminal Procedure."
(4) In re. Repana Naganna alias Nagulu, Accused Prisoner, AIR 1961 Andhra Pradesh 70: "When a case is referred to third Judge under section 378 or 429, Criminal Procedure Code, he should bring his independent judgment to bear on the case after giving due weight to the views of both the differing Judges."
(5) Nemai Mondal and others v. State of West Bengal, AIR 1966 Callcutta 194: "(5) As I read the language of that section, what is laid before the third Judge is "the case" itself and not merely the points of difference or the views of difference. The case with the differing opinions is placed before the third Judge. In other words, it is the duty of the third Judge to decide "the case" and not merely the points on which the Judges have differed. No doubt in dong so, the two differing opinions have to be considered by the third Judge. But the decision is the decision of the third Judge on the case. The concluding words of section 429 of the Criminal Procedure Code to the effect that the judgment shall follow the opinion of the third Judge seems to indicate that the final and ultimate decision is of the third Judge on the case. At the same time the word "case" normally would mean in the case of a number of appellants, the case of each appellant considered separately. In other words, if out of three appellants, the two Judges of the Division Bench agree on one and disagree in respect of the other two appellants, then the "case" that is referred to under section 429 of the Criminal Procedure Code is the case not of the appellant on which they agree but the appellants on which they had disagreed. The case in such a context means the case in respect of the appellants on which the two Judges are equally divided. The words "equally divided" in section 429 of the Criminal Procedure Code seem to support that construction.
(6) Hethubha and others v. The State of Gujarat, AIR 1970 SC 1266.
"Two things are noticeable: first, that the case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case."
(7) Sajjan Singh and others v. State of M.P, (1999) 1 Supreme Court Cases 315.
"10. Statement of law is now quite explicit. It is the third Judge whose opinion matters; against the judgment that follows therefrom that an appeal lies to this Court by way of special leave petition under Article 136 of the Constitution or under Article 134 of the Constitution or under section 379 of the Code. The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact the third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three-Judge Bench where the opinion of majority would prevail."
(8) Mattar v. State of U. P, (2002) 6 Supreme Court Cases 460.
"The third learned Judge, under these circumstances, was required to independently examine the matter and express his opinion. It is not permissible to only or merely indicate the agreement with one or the other view without giving reasons therefor."
(9) State v. Salehoon, PLD 1971 Lah.
292.
"13. Before entering upon the merits of the case I would like to deal with the preliminary question touching the duty and powers of the third Judge under section 429 of the Criminal Procedure Code.
It is submitted by Ch. Fazel Elahi, the learned counsel for the respondent Salehoon, that in the event of one of the Judges of the Division Bench forming an opinion favourable to the accused the third Judge should lean in favour of acquittal as a matter of prudence, especially when the difference of opinion has arisen in an appeal against acquittal. In support of this proposition the learned counsel has placed reliance on Re: Narsiah and others AIR 1959 Andh, Pra. 313 which, in turn, appears to be based on Empress v. Debi Singh 1886 AWN 275 and Khetri Bewa v. The State AIR 1952 Orissa 31."
"(16) This question was considered at some length by A.S. Faruqui, J. In Khurdoo and others v. The State PLD 1963 Kar. 92 and the conclusion reached was:- " I am, therefore, of the view that having regard to the clear provisions of the two sections of the Code, which are identical, when the case is laid before the third Judge on difference of opinion the whole case is before him, and while there is no doubt that he is bound to give due consideration to the fact that another Judge of the same Court had reached the conclusion in favour of the accused, I am not prepared to say that he cannot hold otherwise except upon a finding that view is perverse."
(17) I find myself in respectful agreement with the view taken by Faruqui, J. In the case just cited.
Speaking with great respect to the learned Judge who decided the case re: Narsiah and others in the Andhra Pradesh High Court, it seems to me that there is an inherent contradiction in saying on the one hand, that the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion; and, on the other hand, laying down the "golden rule" that he should favour the opinion of acquittal recorded by one of the differing Judges before whom the case comes up in the first instance. It is clear that such a rule would have the necessary effect of circumscribing the powers and judgment of the third Judge in violation of the clear language of the statute. It is also further clear that such a rule would, in effect, amount to prescribing that in the event of a difference of opinion between the two Judges comprising the Court of Appeal the accused shall either be acquitted or that his acquittal shall not be interfered with in an appeal under section 417 of the Code. Such an interpretation is not warranted by the statute, and would in fact render nugatory the provisions contained in sections 478 and 429 Cr.P.C.
I consider, therefore that in the present reference I have the power, and it is my duty, to examine the whole case afresh so as to form my own opinion with regard to the guilt or innocence of the respondent Salehoon. It goes without saying that due weight has to be attached to the reasons given by the two learned Judges of the Division Bench in support of their respective opinions."
(10) Muzammil Niazi and others. v. State, PLD 2003 Kar.
526. In this case there was difference of opinion between two Judges of this Court and the case was placed before a third Judge who after a very detailed survey of law laid down the following points deduced from the case-law:-- "The following points are deducible from above referred case-law:-
(1) In civil appeal on account of difference of opinion:--
(a) the referring Judges are required to formulate the point of difference;
(b) the reference may be on the points of law and or of facts;
(c) The Division Bench continue to retain jurisdiction over the matter;
(d) where the referring Judges referred the matter for opinion without formulating the point of difference, the referee Judge can formulate such points;
(e) the referee Judge to decide the points of difference only. The whole case is not before him;
(f) the referee Judge after his opinion to refer back his opinion to the Division bench seized of the matter;
(g) the final decision in the case is to be on the basis of majority opinion including the Judges who constituted the Division Bench;
(2) Whereas in criminal appeal, on account of difference of opinion:
(a) The whole case goes to the referee Judge with reference to the particular appellant.
(b) The opinion of the referee Judge is binding on the Division Bench.
(c) His opinion need not be in agreement or at variance with one of the Judges.
(d) The opinion of the referee Judge should be based on independent assessment of the case including the question of sentence.
(e) The referee Judge has to send his opinion to the Bench and the judgment would be based on such opinion."
10. A similar conclusion was reached by Mr. Justice Ataullah Sajjad, acting as refree Judge in Muhammad Sharif v. The State, PLD 1971 Lahore 708 holding that the third Judge is entitled to go through the whole case and can come to conclusions including question of sentence totally at variance with the two Judges on the basis of difference between whom the matter was laid before the third Judge. Therefore, as a referee Judge, it is available to me, rather it is my most sacred duty, to scrutinize the whole case and thereafter come to such conclusions as my limited knowledge guides me to and in the process, though I may (repeat may) give due consideration to opinions of the two learned Judges, my duty and discretion are in no way hampered or circumscribed by the two opinions.
11. In the case in hand, while Mr. Justice Bin Yameen has upheld the conviction but converted sentences of death into sentences of life imprisonment, Mr. Justice Zafar Ahmed Khan Sherwani, disagreed for three reasons: (i) firstly, in his lordship's opinion it, would be unacceptable to reason and unnatural and unbelievable that the real father of the victim in captivity and seeing the victim's life in imminent danger, would refuse to pay ransom amount; (ii) secondly identification in torch light is a weak piece of evidence and must be corroborated with other evidence; (iii) and thirdly the mashir had failed to identify the co-accused and has even grossly misstated the age (40/45 years rather than 18 years which was the actual age).
12. One of the discrepancies on which lot of emphasis was placed by the learned counsel for the appellant was regarding time. F.I.R. Was recorded at 2030 hours and time of occurrence was stated as 1915 hours. P.W.4 Brijlal stated that Aroon Kumar did not return by 7-15 p.m.; they searched for about 15 minutes and it took them one hour to reach the place of wardat. On the other hand, P.W.5 stated that the child did not return till 6-00 p.m. And at about 7-00 p.m. He heard the cries of the child at the scene of the incident. Learned counsel contended that the post mortem report stated that time elapsed between beginning of the post mortem and death was six hours and the post- mortem commenced at 11-00 p.m. Therefore, the incident according to the post mortem report must have occurred at 5-00 p.m. By relating to all these times the learned counsel tried to contend that there was a discrepancy in terms of time stated by various witnesses and the prosecution has not been able to reconcile and resolve this discrepancy. Learned counsel relied upon Yar Muhammad and 3 others v. The State 1992 SCM R 96. Facts of this case were that the appellants were convicted under section 302, P.P.C. It was alleged that the complainant along with deceased who was his brother and uncle were going to Police Station and while they were waiting for a bus at about 8-15 a.m. Appellants came there armed with hatchets. Proverbial hakal was given, hatchet injury was inflicted and brother of the complainant died on the spot while others also received injuries. In the Supreme Court discre pancies in the injuries were pointed out and in this context of facts Supreme Court observed as under:-- "It is a well-settled principle that where there is any discrepancy in the evidence of the prosecution or if it requires some clarification or explanation then the prosecution must explain and clarify the same failing which the benefit will go to the accused. The prosecution has not explained this aspect of the case and, therefore, the suggestion that the injuries were self-inflicted merely to implicate the accused by proving their presence cannot be ruled out."
13. Learned counsel also relied upon a judgment by a Division Bench of this Court in Abdullah Khan and 5 others v. The State 2008 M LD 535. In this case the incident took place at 8-30 a.m. And F.I.R.
Was registered at 20-30 p.m. However post-mortem was completed at 4-00 p.m. Therefore, the F.I.R. Could not have been registered at the time stated. In Ata Muhammad and another v. The State 1995 SCM R 599, the infirmity was regarding number of injuries on the body of the deceased and those stated by prosecution witnesses were found not commensurate with the number of accused persons named by the eyewitnesses. In view of such infirmities ocular evidence was held to fall in a category where conviction could not be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source.
14. In the present case, as far as post mortem is concerned, it is not stated in the post mortem report that the time elapsed between death and commencement of post mortem was six hours.
What was stated was that time between death and post mortem was "within six hours". When P.W.1 doctor was in the witness-box no question was asked in respect of precise time between the death and commencement of post mortem. Therefore, statement in the post mortem report does not create any infirmity. As far as other witnesses are concerned, F.I.R. Was registered at 8-30 hours for an incident alleged to have occurred at 7-15 p.m. One witness gave the time of start of search as 6-00 p.m. Reaching the spot at 7-00 p.m. And the incident at 7-15 hours. The other witness stated that search started at 7-15 hours and they took one hour to reach the place of wardat. What cannot be lost sight of is that incident occurred on 30-10-1999 and place of incident is District Jacobabad. During last days of October in Jacobabad sun sets between 5-45 p.m. And 6-00 p.m.
Once it has become dark, (it is in the evidence that identification took place in torch-light) it becomes a bit difficult for people, particularly in rural areas to pinpoint the exact time. Therefore in my opinion minor discrepancies in time do not create any doubt about on story of the prosecution.
15. The second aspect on which the learned counsel relied upon was as to who carried the dead body to the hospital and how it was carried. P.W.3 P.C. Nazeer Ahmed stated that when, with the S.H.O., he reached the place of wardat, formalities were completed dead body was handed over to him for taking it to hospital for post mortem. He stated that he took the dead body to the Medical Officer and after post mortem dead body was handed over to him and he handed it over to Sahib Rai, P.W.S. He also stated that it was correct that relatives of the deceased were not with him during the period of dispatch of dead body. P.W.4 Brijlal stated that after the wardat he and P.W.6 were guarding the dead body when police reached there and we brought the dead body to Police Station on foot. He further stated that P.W. Murlidhar in his hands carried the dead body to Police Station. P.W.5 stated that dead body was dispatched by the police from the wardat to the hospital in a government vehicle. He further stated that he, Brijlal and Murlidhar were sitting in the mobile and proceeded to the hospital. P.W.6 stated that police took the dead body from the spot and he returned home. P.W.8, S.H.O. Stated that he dispatched the dead body with P.W.3 to the hospital for post-mortem. He further stated that the vehicle in which dead body was taken was provided by the complainant party.
16. Now these are serious discrepancies. There is a discrepancy as to whether dead-body was taken from the wardat to Police Station or it was taken directly to the hospital. There is discrepancy as to whether dead body was taken on foot to the Police Station or it was taken in a vehicle. Then there is discrepancy as to whether the vehicle was a police vehicle or it was provided by the complainant party. The complainant witnesses are absolutely silent regarding providing any such vehicle. There is discrepancy as to who carried the dead body: PC Nazir or Murlidhar. Such discrepancies are very material discrepancies and create a halo of doubt around the story of the prosecution.
17. No blood-stained clothes of the deceased have been produced during evidence. P. W.1 Dr. Sundro does not mention any bleeding. P.W.3 who claimed that he took the dead-body of the deceased also does not talk of any bleeding. P.W.4 stated that he noticed no bleeding on any part of the body of his son. However, P.W.5 stated that deceased was bleeding at the time of the incident. P.W.6 stated that he did not notice bleeding from the injuries of the deceased. Same is stated by P.W.8. Thus, there is even discrepancy regarding whether there was any bleeding or not.
18. It is claimed that torches were secured and it is also claimed that soti was recovered. It should be noticed that there is no specific evidence whatsoever that the soti recovered has been used in the commission of crime: no blood-stains or human hair on it. Therefore recovery of the soti does not in any sense advance the case of the prosecution. As far as recovery of torches were concerned they were not put to the appellant at the time of recording of statement under section 342 Cr.P.C. Learned counsel for the petitioner in this regard relied upon Sheral alias Sher Muhammad's case (Supra). In this case the alleged motive was not put to the witness at the time of recording statement under section 342 Cr.P.C. And the Supreme Court held as under:- "There is yet another strong reason for not using the same against the appellant because it was not suggested to him in his statement under section 342, Cr.P.C. Law requires that any circumstance appearing in the evidence must be put to the accused before it is used against him.
There is absolutely no reason as to why the same was not suggested to the appellant and his explanation obtained thereto."
' Learned counsel also relied upon Muhammad Shah's case (Supra). The Supreme Court laid down as under:-- "It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. In which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross- examination or reexamination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of the appellant, under section 342, Cr.P.C. Reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. Enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece, of evidence is not put to the accused in his statement under section 342, Cr.P.C. Then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."
19. Respectfully following the above dicta of the Supreme Court since the matter of recovery of torches was not put to the appellant while his statement under section 342, Cr.P.C. Was recorded, recovery of torches cannot be used as evidence against the appellant.
20. It was vehemently argued by the learned counsel for the appellant that identification in the light of torches is a weak piece of evidence. This he submitted without prejudice to his submission that evidence regarding recovery of torches cannot be used against the appellant. Learned counsel in this regard relied upon Suwali's case (Supra). Facts of this case were that it was stated by the witnesses that they saw persons who were coming from the north and when they came close brother of the witness challenged them to stop. It was then that he recognized one of the persons to be the appellant. The incident occurred at about 1-30 a.m. It was admitted that it was pitch darkness and both the witnesses claimed that they had identified Suwali from amongst four culprits by flash of torch which was carried by the first informant. They clamed that they saw witnesses from a distance of 4 to 6 feet which piece of evidence was belied by the medical evidence which stated that fire was made from a distance of 30 paces. It was held that it would be unsafe to base conviction on the basis of identification in torch light.
21. Fazal Ahmad's case (Supra) was also relied upon. The facts of that case were that at about 11-30 p.m. When the two witnesses were sleeping in the courtyard of their house one of them got up upon barking of dogs and saw two persons standing near him. Upon this one person lit a torch and said that he was the person and asked the other to kill him. Shot was fired and the witness was injured. Upon such report his brother also got up who had torch with him and identified the two in the torchlight. The High Court held that identification in the light of the torch was weak evidence.
The accused persons knew the brother also and they could have killed or injured him when they found them sleeping there. The two cases turn on, their peculiar circumstances. In the present case, the time was about an hour or hour and a half after sunset. Therefore, it could not be said to be pitch darkness. Moreover, the complainant and the witnesses knew each other. They even talked to each other. It is claimed by the defence that there was previous enmity between the parties. In Suwali's case there was doubt regarding the distance where medical evidence was at variance with ocular evidence and in Fazal Ahmad's case it was deemed highly unnatural that the accused would shoot at one and wait for the other to' get up, pick up his torch and then identify: he could have shot at the two at the same time. In the present case no firearm is reported. Therefore, the case-law does not really help the case of the appellant.
22. Besides the doubt created by as to who and when the dead body was carried and as to where and by what means was the dead body carried, there is another aspect. A 5 years old minor son was being held by the two accused persons who were strangulating him. If some one's son is in the process of being strangulated and the strangulator demands a ransom it, is highly improbable that the father would straightway refuse. His first reaction must be tosay something so that the act of strangulation is discontinued. He may try to negotiate; he may plead for mercy but it is highly improbable that he would straightaway refuse. He should have thought that logically no one carries a couple lac of rupees in his pocket and could have sought time. But he did neither: he bluntly refused as if he was not bothered as to what could follow. No Such conduct is highly improbable.
23. Moreover even evidence in respect of strangulation is contradictory. P.W.4 stated that when they saw the child they demanded return of the child. Upon such, ransom was demanded. It was refused and then as soon as the witness went near to the appellant he caused a blow and also strangulated. P.W.5 stated that first the child was strangulated then soti blow was given. P.W.6 stated that soti blow was given to the head of the child. He does not say anything about strangulation. These are significant contradictions and they create doubt. It is settled law that benefit of doubt, if any, whatsoever must go to the person being accused of having committed the crime.
24. For the above reasons in my opinion, prosecution has failed to prove commission of any offence committed by the appellant beyond a reasonable doubt. The appeal is therefore allowed.
Impugned judgment is set aside and the appellant is acquitted by giving benefit of doubt He is ordered to be released forthwith if not required in any other case. The Reference submitted by the trial Court is also returned accordingly.