1. Sardar Muhammad Shamim Khan, J.--Saif Ullah and Munir Ahmad along with Zaka Ullah were tried by learned Addl. Sessions Judge, Muzaffargarh in case FIR No, 149 dated 06.05.2007 for the offence under Section 302/34, PPC, Police. Station City Alipur, who vide judgment dated 30.06.2008 convicted Saif Ullah, appellant under Section 302-B, PPC read with 34, P.P.C. and sentenced him to Death and to pay compensation of Rs,50,000/- to be paid to the legal heirs of the deceased, and in case of default to undergo six months S.I., whereas Munir Ahmad, appellant was convicted under Section 302-B, PPC read with 34 P.P.C. and sentenced him to Imprisonment for Life and to pay compensation of Rs,1,00,000/- to be paid to the legal heirs of the deceased, and in case of default to undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended in favour of Munir Ahmad, appellant. Other accused person namely Zaka Ullah was acquitted of the charge.
2. The appellants Saif Ullah and Munir Ahmad have filed Crl. Appeal No, 130 of 2008 and Crl. Appeal No, 122 of 2008, respectively against their conviction and sentence recorded against them, whereas the learned trial Court has sent a reference (M.R. NO.59 of 2008) for the confirmation or otherwise of death sentence of Saif Ullah, appellant. We propose to dispose of aforementioned matters through this single judgment.
3. Brief facts of the case as disclosed by Ghulam Yasin, complainant in the F.I.R Ex.PN were that he was a cultivator. His son Kafayat Ullah, aged 24/25 years was working as Dispenser in the Clinic of Dr. Abdul Hafeez Khan, situated near Madni Masjid, Circular Road, Alipur. On 06.05.2007, at about 03.00 pm, he along with Ghulam Muhammad s/o Rahim Bakhsh, Muhammad Amin s/o Ganman Khan was present in the Clinic of Dr. Abdul Hafeez in connection with some work. In the meantime, Sail Ullah son of Hazoor Bakhsh, armed with .12-bore pistol and Munir Ahmad s/o Fida Hussain armed with pistol came there. Saif Ullah fired with his pistol .12-bore which hit Kafayat Ullah, his son, on his back side below left shoulder. Munir Ahmad aimed his pistol at them and warned that it would not be good for anyone, if came near. Both the accused ran towards north to Khairpur Chowk. In the meanwhile, other persons also came there. They followed the assailants; but both the accused persons succeeded in running away after sitting on a motorcycle with an unknown person, who was standing at Mohajirin Imamkhana near Khairpur Road. They took care of Kifayat Ullah after returning, but he had succumbed to his injuries.
4. Motive behind the occurrence was that his son Kifayat Ullah was engaged with Mst. Rizwana alias Momil d/o Ganwar Khan, but they refused to give her hand to Kifayat Ullah, because they wanted to marry her with Munir Ahmad. But Mst. Rizwana alias Momil refused to marry with Munir Ahmad. It was heard that Mst. Rizwana alias Momil had committed suicide few months ago. This grudge motivated the accused persons to murder his son with their mutual consultation.
5. After completion of investigation Saif Ullah and Munir Ahmad, appellants along with Zaka Ullah were found guilty of the offence, therefore, challan was submitted before the learned trial Court for trial.
6. Charge against the accused persons was framed to which, they pleaded not guilty and opted to be tried.
7. In order to prove its case, the prosecution examined as many as (14) Fourteen witnesses.
2. PW-1 Muhammad Saleem, ASI on 06.05.2007, on the receipt of complaint, drafted formal F.I.R Ex,PA.
3. PW-2 Rana Tahir, on 06.05.2007 identified the dead body of Kifayat Ullah, deceased, at the time of autopsy in THQ Hospital, Alipur.
4. PW-3 Muhammad Saleem C/335 on 06.05.2007 escorted the dead body to the mortuary for autopsy.
5. PW-4 Muhammad Abid HC/452/Moharrar deposed that on 06.05.2007 Investigating Officer handed over to him one sealed parcel said to contain blood stained cotton and one sealed plastic box containing seal of Civil Hospital, Alipur along with three pellets and one cartridge, one blood stained cot, one pair of shoes black coloured and last worn clothes of the deceased, which he kept in Malkhana in safe custody. On 27.05.2007 he handed over aforementioned sealed parcels to Abdul Majeed, C/1344 for their onward transmission to the office of the Chemical Examiner and Forensic Science Laboratory, Lahore. On 16.07.2007 Investigating Officer handed over to him one sealed parcel containing pistol .12-bore along with six live cartridges and pistol .30-bore along with eight bullets for keeping them in safe custody. On 08.08.2007 he handed over .12-bore pistol along with six live bullets to Riaz Hussain C/881 for onward transmission to the office of Forensic Science Laboratory. He deposited the pistol .30-bore along with eight live bullets in the Malkhana Alipur for its safe custody. On 20.07.2008 Investigating Officer handed over to him one motorcycle No, 9303/BRL which he kept in the Malkhana.
6. PW-5 Muhammad Amin and PW-6 Ghulam Muhammad are the eye-witnesses of this case, who have supported the prosecution story.
7. PW-7 Muhammad Tahir, Draftsman prepared scaled site-plan on the direction of local police and pointation of the witnesses.
8. PW-8 Mashooq All C/427 is the recovery witness and deposed regarding the recovery of motorcycle bearing Registration No, 9303/BRL PW-9 Salim Iqbal, Sub-Inspector deposed regarding the investigation of the case conducted by him.
9. PW-10 Mumtaz Hussaih, ASI, on 17.07.2007, effected the arrest of Zaka Ullah, accused.
10. PW-11 Dr. Syed Ishfaq Ali Kazmi, Senior Medical Officer, THQ Hospital conducted Post Mortem Examination on the dead body of Kifayat Ullah, deceased and found the following injuries on his person. i. A fire-arm rounded wound of 3.5 cm X 3.5 cm on the back of lower half of left scapular region with burnt inverted blackening margin, with exposed muscular tissue and haematoma (fire-arm entrance wound of multi pellet cartridge)
11. In his opinion, the cause of death in this case was fire-arm Injury No,
1. The probable time between injury and death was within one hour and between death and post-mortem examination was within three hours.
12. PW-12 Abdul Majeed C/134 transmitted the blood-stained cotton and one plastic tin to the office of Chemical Examiner, Lahore.
13. PW-13 Mati Ullah, Inspector/S.H.O. deposed regarding the steps of investigation conducted by him.
14. PW-14 Riaz Hussain C/881 transmitted one sealed parcel said to contain pistol .12-bore along with six cartridges to the office of Forensic Science Laboratory, Lahore.
8. It is pertinent to mention here that Ghulam Yasin, complainant died after the registration of F.I.R, therefore, his statement was not recorded during the trial.
9. Learned DDPP gave up PWs namely Imdad Hussain C/673 and Nazeer Ahmad being unnecessary and after tendering in evidence the report of Forensic Science Laboratory, Ex.PR, report of Chemical Examiner as Ex.PS and report of Serologist as Ex.PT, closed the prosecution case.
15. 10.After the closure of the evidence, the statements of accused persons under Section 342 of, Cr.P.C. were recorded. They denied the allegations levelled against them and professed their innocence. In answer to question, why this case against you and why the PWs have deposed against you, the appellants Saif Ullah and Munir Ahmad took the same stance and replied as under:-- "Kifayat Ullah deceased was employed as Dispenser in the Al-Hafeez Clinic, Alipur, where some nurses were also employed. He developed illicit relations with them. When the relatives of the nurses canie to know about such illicit relations of the deceased with the nurses, they committed the murder of the deceased due to his illicit relations with the nurses of the Clinic. The complainant party has falsely involved me and my co-accused persons in this case due to our dispute over landed property. Private PWs have deposed falsely due to said landed property dispute. The official PWs have deposed falsely just to strengthen the case being police officials."
16. 11.Saif Ullah and Munir Ahmad, appellants did not opt to appear under Section 340(2) of Cr.P.C. in disproof of the allegations levelled against them nor produced any evidence in their defence.
17. 12.After conclusion of the trial above mentioned conviction and sentence was passed against the appellants whereas Zaka Ullah accused person was acquitted of the charge.
18. 13.Saif Ullah and Munir Ahmad, appellants through the instant appeals have challenged the validity of the impugned judgment.
19. 14.Learned counsel for the appellants contended that ocular account of this case has been furnished by Muhammad Amin, PW-5, who is real uncle of Kafayat Ullah, deceased and Ghulam Muhammad, PW-6, who is real cousin of Ghulam Yasin, complainant, father of the deceased; that occurrence took place in the clinic of Dr. Abdul Hafiz Khan, who was the natural witness of the occurrence but he was not produced by the prosecution in order to prove its case; that both eyewitnesses resided at a distance of 5 I M from the place of place of occurrence, therefore, they were chance witnesses, therefore, their evidence is not reliable; that prosecution has not proved the motive part of the prosecution story and even if the motive of the prosecution story is believed, Saif Ullah, appellant had no reason to commit murder of Kafayat Ullah deceased as motive was not attributed to him; that no empty was secured from the place of occurrence, therefore, pistol allegedly recovered from the possession of Saif Ullah, appellant, is not a corroborative piece of evidence against him as there is no report of Forensic Science Laboratory that same pistol was used during the occurrence; that prosecution has not proved its case beyond reasonable doubt against the appellants; that Munir Ahmad, appellant was allegedly present at the place of occurrence but there is no allegation against him that he caused any injury on the person of Kafayat Ullah, deceased; that infact Kafayat Ullah, deceased developed illicit relations with some Nurses, who were employees in Al-Hafeez Clinic and when relatives of the Nurses came to know about illicit relationship of Kafayat Ullah with Nurses, they committed his murder; that there is no evidence regarding the vicarious liability of Munir Ahmad appellant with his co-accused Saif Ullah for the commission of murder of deceased but learned trial Court has convicted Munir Ahmad appellant without any lawful justification. Thus it is submitted that by accepting these appeals, appellants are entitled to be acquitted. Lastly, learned counsel for Saif Ullah, appellant submitted that if this Court is not persuaded in acquitting Saif Ullah, appellant, then at least the case of Saif Ullah, appellant comes within the purview of mitigating circumstances as motive and recovery of pistol against Saif Ullah appellant was not proved by the prosecution.
20. 15.Learned DPG and learned counsel for the complainant have opposed these appeals on the grounds that both appellants were nominated in the promptly lodged F.I.R; that there was specific allegation against Saif Ullah, appellant that he was armed with pistol .12-bore and fired at Kafayat Ullah, deceased, which landed on his back side, below the left shoulder; that post-mortem examination conducted on the dead body of Kafayat Ullah, deceased corroborates the ocular account furnished by the prosecution; that prosecution has also proved motive part of prosecution story; that recovery of pistol from Saif Ullah, appellant is also a corroborative piece of evidence against him as according to the report of Forensic Science Laboratory the pistol recovered from his possession was in working condition; that the prosecution has proved its case beyond reasonable doubt, therefore, these appeals are liable to be dismissed.
21. 16.We have heard the arguments advanced by the learned counsel for the parties and perused the record with care.
22. 17.It has been noticed by us that this occurrence took place on 06.05.2007 at about 03.00 pm whereas statement of complainant Ex.PN was recorded at 03.15 pm at Al-Hafeez Hospital, after 15- minutes of the occurrence whereas formal F.I.R Ex.PA was chalked out at 03.30 pm. Even post- mortem examination on the dead body of Kafayat Ullah, deceased was conducted at 06.00 pm on the same day, after three hours of the occurrence. Such promptly lodged F.I.R excludes the chances of consultations and deliberation. Name of the accused, manner of the occurrence, seat of injury, weapon of offence used during the occurrence and names of the PWs were mentioned by the complainant in the F.I.R.
23. 18.Motive behind this occurrence as alleged by the prosecution is that Kafayat Ullah, deceased was engaged with Mst. Rizwana alias Momal daughter of Ganwar Khan but they refused to give her hand to Kafayat Ullah deceased because they wanted to marry Mst. Rizwana alias Momal with Munir Ahmad, appellant. Whereas, Mst. Rizwana alias Momal refused to marry with Munir Ahmad, appellant. Mst. Rizwana alias Momal committed suicide few month prior to this occurrence and on account of this grudge the accused persons committed the murder of Kafayat Ullah with their mutual consultation.
24. 19.In order to prove motive, prosecution produced Muhammad Amin, PW-5 and Ghulam Muhammad, PW-6, who had deposed regarding the motive as stated above. The prosecution did not produce any evidence in order to establish that Mst. Rizwana alias Momal was engaged with Kafayat Ullah, deceased but her parents refused to give her hand to Kafayat Ullah, deceased as they wanted to marry Mst. Rizwana alias Momal with Munir Ahmad, appellant. Prosecution also did not produce any evidence that Mst. Rizwana alias Momal refused to marry Munir Ahmad, appellant.
25. It has been observed by us that Saif Ullah, appellant, who committed the murder of Kafayat Ullah deceased, had no connection with the above said motive of prosecution. It is un-understandable that why Saif Ullah, appellant committed the murder of Kafayat Ullah, deceased, if parents of Mst.
26. Rizwana alias Momal refused to give her hand to the deceased and that parents of Mst. Rizwana alias Momal wanted to give her hand to Munir Ahmad, appellant. It was not the case of prosecution that Kafayat Ullah, deceased was insisting upon getting hand of Mst. Rizwana alias Momal when her hand was refused by her parents to him. It was also not the case of prosecution that Mst.
27. Rizwana alias Momal refused to marry with Munir Ahmad, appellant as she wanted to marry with Kafayat Ullah deceased. In these circumstances there was no reason, even for Munir Ahmad, appellant for having consultations with his co-accused Saif Ullah for committing the murder of Kafayat Ullah, deceased, therefore, we have reason to believe that neither prosecution has proved motive as set up by it during the trial nor this motive was cause of grudge for appellants for committing the murder of Kafayat Ullah deceased.
28. 20.Ocular account in this case was furnished by Muhammad Amin, PW-5 and Ghulam Muhammad, PW-6, who have categorically deposed that on 06.05.2007 at about 03.00 pm they were present in clinic of Dr. Hafeez Ullah, in the meanwhile Saif Ullah, appellant armed with pistol .12-bore came over there. Saif Ullah, appellant fired with his pistol which hit Kafayat Ullah on his back side, below the left shoulder and thereafter Saif Ullah along with Munir Ahmad, appellant succeeded in running away on a motorcycle with a person, who was standing at Mohajrin Imam Khana. Kafayat Ullah succumbed to the injury at the spot.
29. 21.Although Muhammad Amin, PW-5 is real uncle of Kafayat Ullah, deceased whereas Ghulam Muhammad, PW-6 is real cousin of Ghulam Yasin (since dead), complainant, father of Kafayat Ullah but mere relationship of these eye-witnesses with the deceased is no ground itself to discard their testimony as both these eye-witnesses are not inimical to the appellants. In this respect we respectfully refer the case of "Khizar Hayat us. The state" (2011 SCM R 429) wherein the Hon'ble Supreme Court has observed as under:-- "The statement of witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."
30. 22.Muhammad Amin, PW-5 and Ghulam Muhammad, PW-6 reside at a distance of 5 KM from the place of occurrence but both these eye-witnesses have reasonably explained the reason of their presence at the spot at the time of occurrence and stated that they had gone to the Al-Hafeez Clinic in order to take money from Kafayat Ullah, deceased, therefore, they could not be termed as chance witnesses. Both these eye-witnesses have given the detailed account of events leading to the murder of Kafayat Ullah deceased and remained unanimous on all material aspects of the case. Both these eye-witnesses were cross-examined at length by the defense but their evidence was not shattered by the defense in any manner. Perusal of evidence of both these eyewitnesses reveals that defense has not seriously cross-examined these PWs regarding the eye-witness account of prosecution story.
31. 23.The contention of learned counsel for the appellants that as this occurrence took place in the Clinic of Dr. Abdul Hafeez Khan, therefore, Dr. Abdul Hafeez Khan was the natural witness who was not produced by the prosecution in order to establish its case, has no force as perusal of evidence of both these eye-witnesses reveals that Dr. Abdul Hafeez Khan was not present in his Clinic at the time of occurrence. Even otherwise, independent witnesses hesitate to become witness in murder cases in order to avoid enmity with the accused persons.
32. 24.This occurrence took place at day time, therefore, there was no chance of mis-identification.
33. There is specific allegation against Saif Ullah, appellant that he fired at the deceased with pistol .12- bore, who succumbed to the injuries at the spot, therefore, this is a single accused case and substitution in such cases is rare phenomenon. It cannot be expected from Ghulam Yasin, complainant (since dead), who was father of Kafayat Ullah, deceased that he would let off real culprits and would falsely involve Saif Ullah, appellant in this case in the absence of any enmity with him. In this respect we again respectfully refer the case of Khizar Hayat vs. The State (2011 SCM R 429) wherein the Hon'ble Supreme Court has observed as under: "In addition to it, it is a case of single accused, who has fired upon the deceased Ghulam Ghous, therefore, substitution of a culprit is not possible besides it is a rare phenomenon where a witness whose close relative has been murdered would substitute the accused with an innocent person thereby allowing the actual accused to go scot-free."
34. 25.The plea taken by Saif Ullah, appellant that Kafayat Ullah, deceased had developed illicit relationship with some Nurses, who were employed at Al-Hafeez Clinic and when relatives of those Nurses came to know regarding this fact, they committed the murder of Kafayat Ullah, deceased, is a vague and improbable plea. It has not been mentioned by the defense that with whom Kafayat Ullah developed illicit relationship and who were the relatives of those Nurses, who committed the murder of Kafayat Ullah, deceased. As Saif Ullah, appellant had taken a specific plea, he was bound to prove the same as required under Article 121 of Qanun-e-Shahadat Order but Saif Ullah, appellant failed to prove the same. Even it is not clear that how Saif Ullah appellant came to know that relatives of Nurses committed the murder of Kafayat Ullah, deceased. Saif Ullah, appellant did not opt to appear to depose on oath as required u/S. 340(2), Cr.P.C. in order to prove specific plea taken by him, therefore, we are of the considered view that this plea has been taken by Saif Ullah, appellant only to save his skin, which cannot be believed.
35. 26.Medical evidence in this case has been furnished by Dr. Syed Ishfaq Ali Kazmi, PW-11, who has furnished necessary corroboration to the ocular account of prosecution story. PW-11 conducted post-mortem examination on the dead body of Kafayat Ullah, deceased and found following injury on the person of the deceased: A fire-arm rounded wound of 3.5 cm X 3.5 cm on the back of lower half of left scapular region with burnt inverted blackening margin, with exposed muscular tissue and haematoma (fire-arm entrance wound of multi pellet cartridge).
36. Therefore, the ocular account furnished by the prosecution is in line with the medical evidence qua the seat of injury and weapon used during the occurrence. The probable time between injury and post-mortem examination of the deceased was given by the doctor as 3-hours, which also corroborates the time of occurrence as given by the prosecution. It has further been observed by us that Dr. Syed Ishfaq Ali Kazmi was'not cross-examined by the defense, therefore, the defense has admitted the medical evidence furnished by the prosecution.
37. 27.Another incriminating evidence against the appellants is that they led to the recovery of pistols. According to prosecution evidence on 16.07.2008 Saif Ullah, appellant got recovered pistol .12-bore along with 6-cartridges from brick-kiln situated in Mouza Mutafarqa. Similarly Munir Ahmad, appellant also got recovered pistol .30-bore along with 8- bullet from the same brick-kiln.
38. These recoveries were witnessed by Muhammad Amin, PW-5 and Ghulam Muhammad, PW-6. As there was no allegation against Munir Ahmad, appellant that he used his pistol .30-bore during the occurrence, therefore, recovery from his possession is not a corroborative piece of evidence. So far as recovery of pistol .12-bore from the possession of Saif Ullah, appellant is concerned, it has been observed by us that this recovery was effected from a brick-kiln, which is a deserted place and Saif Ullah, appellant allegedly got recovered pistol .12-bore in the presence of Muhammad Amin and Ghulam Muhammad, who are also eye-witnesses of this case. No person from the vicinity was joined in order to witness recovery on the pointation of Saif Ullah, appellant. No empty was secured from the place of occurrence, therefore, there is no report of Forensic Science Laboratory in order to establish that the pistol recovered on the pointation of Saif Ullah, appellant was the same which was used during this occurrence, therefore, in our view the recovery from the possession of Saif Ullah, appellant is not believable and same is inconsequential and is not a corroborative piece of evidence against him.
28. For what has been discussed above, we have no hesitation in holding that prosecution has proved its case beyond reasonable doubt against Saif Ullah, appellant by ocular account and medical evidence, therefore, Saif Ullah, appellant was rightly convicted by learned trial Court vide judgment dated 30.06.2008, which in our view is based on well settled principles of appreciation of evidence, therefore, conviction of Saif Ullah, appellant u/S. 302-B, P.P.C. awarded by learned Addl.
39. Sessions Judge, is maintained.
40. So far as the quantum of sentence of Saif Ullah, appellant is concerned, in our view, the following are mitigating circumstances in sentence in his favour:-- (i)As we have already concluded .that prosecution did not prove the motive part of prosecution story as Saif Ullah, appellant had no reason to commit murder of Kafayatullah, deceased on account of motive set up by the prosecution, therefore, the real reason for commission of murder of the deceased at the hands of Saif Ullah, appellant has been suppressed and concealed by the prosecution. As the prosecution has not proved the motive against Saif Ullah, appellant, therefore, this is a mitigating circumstance in favour of Saif Ullah, appellant. In this respect we have sought enlightment from the case law reported as "Zulfiqar Hussain and another us. The State" (Supreme Court of Pakistan Monthly Review 379) wherein it was held by the Apex Hon'ble Supreme Court of Pakistan as under:-- "motive for occurrence was shrouded in mystery and even genesis of occurrence was hazy and nebulous--Sentence of death to both the accused was not sustained in circumstances--Supreme Court while maintaining findings of guilt as recorded against two accused, set aside, the sentence of death awarded to them and convicted under 5.302 (b), PPC and each of them was punished with sentence of imprisonment for life"
41. (ii)The prosecution did not prove the recovery of pistol .12- bore from the possession of Saif Ullah, appellant and same is not a corroborative piece of evidence against him, which in our view is another incriminating circumstance in favour of the appellant. In this regard we rely on the case law reported as "2007 SCM R 525" (Israr Ali Vs. The State) ----Ss. 302(b) & 377--Office of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12-- Reappraisal of evidence--Mitigating circumstances--Quantum of sentence--Benefit of doubt-- Delay in sending crime-empty to Forensic Science Laboratory--Uncorroborated case property-- Prosecution witness admitted in cross-examination that he did not state before Investigating Officer that parcel containing crime empty was handed over to the witness who placed it in Malkbana--Crime empty was -taken into possession on 03.11,1999 but was sent to FSL on 01.12.1999- --Accused was arrested on 05.12.1999 and pistol was recovered from him on his pointation--Effect- -Such type of recovery of crime empty did not provide strong corroboration to prosecution version and mitigating/ extenuating circumstances in favour of accused for lesser penalty--Prosecution failed to connect accused, in the circumstances of the case, with property recovered from the spot and the property recovered from the bag of the accused--Benefit of doubt could be pressed into the matter of sentence--Sentence of death awarded under S. 302(b) P.P.C., and S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, awarded by trial Court and maintained by the Federal Shariat Court was converted into imprisonment for life.
42. 30.Resultantly, conviction of Saif Ullah, appellant passed by learned Addl. Sessions Judge vide judgment dated 30.06.2008, u/S. 302- B P.P.C. to the extent of Saif Ullah, appellant, is maintained.
43. However, sentence of death of Saif Ullah, appellant is converted into Imprisonment for Life. Benefit of Section 382-B, Cr.P.C. is also extended in favour of the appellant. The amount of compensation u/S. 544-A, Cr.P.C. as awarded by learned trial Court in the impugned judgment shall remain intact.
44. 31.With these modifications, Crl. Appeal No, 130 of 2008 filed by Saif Ullah, appellant is hereby dismissed.
45. MURDER REFERENCE IS ANSWERED IN NEGATIVE. DEATH SENTENCE IS NOT CONFIRMED.
46. 32.So far as the case of Munir Ahmad, appellant is concerned, it is on different footings from the case of Saif Ullah, appellant. Although Munir Ahmad, appellant was nominated in the F.I.R and there was allegation against him that he was armed with pistol .30-bore but it has been observed by us that he did not use pistol during the occurrence. There is no allegation against Munir Ahmad, appellant that he inflicted any injury on the person of Kafayat Ullah, deceased. Although according to prosecution evidence Saif Ullah, appellant committed the murder of Kafayat Ullah, deceased in consultation with Munir Ahmad, appellant but no evidence has been produced by the prosecution in this regard. There is no evidence available on the record that Munir Ahmad, appellant was vicariously liable for the commission of murder of Kafayat Ullah, deceased with Saifullah appellant.
47. It has already been concluded by us that Munir Ahmad, appellant had no reason to join hands with Saif Ullah, appellant for commission of murder of Kafayat Ullah deceased, on the basis of motive as alleged by the prosecution and that the posecution has failed to prove the motive part of prosecution story against Munir Ahmad, appellant. Recovery of pistol .30-bore has not be believed by us, therefore, in our view prosecution has failed to prove its case against Munir Ahmad, appellant, beyond reasonable doubt, therefore, by extending benefit of doubt to Munir Ahmad, appellant Crl. Appeal No, 122 of 2008 is accepted. Conviction of Munir Ahmad, appellant awarded to him by the learned trial Court vide judgment dated 30.06.2008 is set aside. Munir Ahmad, appellant is acquitted of the charge. He is present before this Court on bail. His bail bonds are withdrawn and surety is discharged from his liability.