' SH.AHMAD FAROOQ, J.---Three accused persons namely Arshad Munir, Waseem Ahmad and Shahnawaz were tried by learned Additional Sessions Judge, Karor District Layyah in a criminal case arising out of F.I.R No.204 dated 12-8-2003 registered in Police Station Karor under sections 302, 201, 34 P.P.C. And section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for an occurrence wherein Ghulam Ali/ complainant's wife namely Mst. Muradan and daughter/Mst.
Kalsoom respectively were murdered after commission of 'zina'. At the conclusion of trial, the learned trial Court vide impugned judgment dated 12-42004 while acquitting the accused/Arshad Munir and Waseem Ahmad from the charge of murder of deceased ladies found the third accused i.e. Shahnawaz guilty of qatl-e-amd' of Mst. Muradan and Mst. Kalsoom and convicted and sentenced him to death on two count under section 302(b), P.P.C. The convicted accused/Shahnawaz has also been directed to pay Rs.50,000 each to the legal heirs of two deceased as compensation under section 544-A, Cr.P.C., failing which, he was ordered to undergo one year's S.I. Moreover, all the three accused i.e. Shahnawaz, Arshad Munir and Waseem Ahmad were also convicted under section 201, P.P.C. And sentenced to six years' R.I each along with a fine of Rs.5000 each and in default whereof, to suffer one months' S.I each. However, the aforementioned three accused were acquitted of the charge under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Benefit of section 382-B Cr.P.C. Was extended to the convicted accused by the learned trial Court.
2. While the convicted accused/Shahnawaz, Arshad Munir and Waseem Ahmad challenged their convictions and sentences as aforementioned, by filing Criminal Appeals ' Nos.77-L-2009 and 85-L-2009 respectively, the complainant/Ghulam Ali also filed Criminal Appeal No.65-L-2010 against acquittal of two accused namely Arshad Munir and Waseem Ahmad from the charge under section 302 P.P.C. And section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance,1979. The learned trial Court has also sent Murder Reference No.11 of I of 2009 for confirmation or otherwise of the sentence of death imposed upon appellant/Shahnawaz. Three Criminal Appeals i.e. 77-L of 2009, 85-L of 2009 and 65-L of 2010 and the Murder Reference No.11-1- 2009 are being decided through this single judgment as these have arisen out of the same judgment dated 12-4-2004.
3. Succinctly, the prosecution story as narrated by the complainant Ghulam Ali in the F.I.R (Exh.PK) is that on 12-8-2003 at about 10-00 a.m., his wife/Muradan along with his daughter Mst. Kalsoom aged about 14/15 years went to the field of sugarcane of Malik Ghulam Abbas on a donkey cart for cutting grass. At "peshiwala" (afternoon) the donkey cart came back to the house without his wife and daughter whereupon, he become worried. The complainant alongwith his brother/Noor Muhammad alias Mako and son/Aman Ullah started search of his wife and daughter. They saw accused Shahnawaz, Waseem, both armed with "kassi", and Muhammad Arshad armed with "sota" digging the earth with their respective weapons in the wet sugarcane crop. They tried to approach the accused persons for inquiring about the missing ladies, but they threatened them that in case they came near, they would be killed. Thereafter, all the three accused along with their weapons fled away towards west, whereupon, the complainant along with his companions reached at the spot and saw the dead bodies of Muradan and Kalsoom. They identified the dead bodies and took them out from the mud. They observed various injuries on the dead bodies and found the head of Mst. Kalsoom separated from her body. The complainant alleged that the motive behind the occurrence is that accused Shahnawaz, Waseem Ahmad and Arshad, who are of bad character, with their common intention, had murdered both the ladies after committing 'zina' with them.
4. After completion of usual investigation, a report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences.
5. In order to substantiate the allegations levelled by the complainant and to prove the charges, the prosecution got recorded statements of as many as 11 witnesses. However, the learned Prosecutor gave up P.Ws namely Gal Muhammad alias nor Muhammad and Hafiz Muhammad Ameen as being unnecessary. The report of the Chemical Examiner was produced as Exh.P.O by the Prosecutor. The ocular account of the occurrence was furnished by P W . 7 /Ghulam Ali (complainant) and his son namely Abdul Rehman, who appeared as P.W.8. The medical evidence was provided by P.W.1 and P.W.5/Dr.Sartaj Tirmzi who, conducted post mortem examination of Mst.
Muradan Mai and Mst. Kaisoom Mai (deceased). On 13-8-2003. P.W.9/Atta Hussain, S.I was the Investigating Officer of this case and he narrated the various steps taken by him during the investigation including the arrest of the accused. P.W.10/Ghulam Haider witnessed the recovery of the articles belonging to the deceased ladies (Exh.P-9 to Exh.P-12/1) as well as weapons of offence i.e. One `kassi' (Exh.P28), one 'sots' (P-7) on the pointation of accused/ Shahnawaz. P.W. 11/ Kaleem Haider (Patwari) prepared scaled site plan Exh.PN on the direction of the police and pointation of P.Ws. The remaining witnesses are of formal nature. The learned trial Court has reproduced the gist of the statements of the prosecution witnesses in the impugned judgment and there is no need to repeat the same. However, the relevant portions of the statements of the witness of the prosecution would be discussed and examined in the subsequent paragraphs of this judgment.
6. After the closure of the evidence of the prosecution, the statement the present appellants were recorded under section 342, Cr.P.C. Wherein they denied the allegations levelled against them by the prosecution. Accused/Shahnawaz, in response to a crucial question as to " why the P.Ws.
Deposed against and why the case against you," replied as under:-- "P.Ws. Are related inter se and they are also under the influence of Sardar Sajjad Ahmad and Sardar Bahadar Khan MNA. The occurrence was not witnessed one. Dead bodies were recovered by the inhabitants of the area, after a considerable endeavour being made by the at about Isha Vaila.
Number of persons were captured by the police on the basis of suspicion of murder of both the ladies, but they were subsequently set free on the intervention of political tycoons. As I was a poor man and was without any political influential support, so I was booked in this false case at the behest of Sardar Bahadar Khan Seehar. I had opposed the political interest of Sardar Bahadar Khan and his brother and I had managed the votes of my brothers in favour of their rival candidates (SahibzadaFaizul Hassan) which nursed grudge in the mind of Sardar Bahadar Khan MNA. My version regarding innocence was not brought on the record by the police and I had been falsely challaned in this case. All the recoveries are planted, fictitious and fabricated. I have no concern with the murder of these ladies. I am innocent. F.I.R. Was lodged after deliberation consultation with political tycoons with mala fide intention. I am innocent."
' Accused/Arshad Munir and Waseem Ahmad have made similar statements as narrated by accused Shahnawaz. However, all the accused/appellants neither opted to make statements on oath in disproof of the charges as envisaged under section 340(2) Cr.P.C. Nor produced any evidence in their defence.
7. Upon conclusion of the trial, the learned trial Court vide judgment dated 12-4-2004 has convicted and sentenced the accused/present appellants as mentioned in paragraph-1 of this judgment.
8. Mr. Shahbaz A. Rizvi, learned counsel for appellant /Shah Nawaz submitted that the F.I.R was lodged after a delay of seven hours as the incident took place at `peshiwela' (after noon) whereas, the case was registered at 9-30 p.m. On 12-8-2003. He claimed that the case was got registered after consultation, premeditation and primary inquiry, which makes the prosecution story highly doubtful. He contended that there is no eye-witness of the murder of the two ladies and this fact has not only been admitted by the complainant himself while appearing as P.W.7 but also by P.W.9/Atta Hussain, S.I, who is I.O. Of this case. He also contended that there is no evidence available on record regarding the place and time of commission of murder of Mst. Muradan and Mst. Kalsoom. He clarified that the place wherefrom the dead bodies of the said two ladies were recovered is admittedly not the spot where they were done to death. He maintained that no bloodstains were found on the surrounding plants and even the alleged weapon of offence i.e. 'sota' and 'kassi' were also not found to be blood-stained. He maintained that the medical evidence did not support the ocular account. He pointed out various discrepancies in the statements of the eyewitnesses i.e. P.W.7 and P.W.B. He alleged that the recovery of the weapon of offence as well as belonging of the deceased ladies were effected at a belated stage during the physical remand of the accused and the same were actually planted in order to strengthen the case of the prosecution by the investigating agency. He highlighted that the alleged weapon of offence i.e. "kassi" and "sota" were never sent to the Chemical Examiner or Serologist. He explained that the place wherein the dead bodies were allegedly being buried is visible from the nearby thorough fare and it is not probable that the accused would commit such an offence in broad-daylight. The learned counsel for the appellant argued that on the same set of evidence, two accused namely Arshad Munir and Waseem Ahmad have been acquitted from the charge of murder, whereas the appellant/Shahnawaz has been convicted, which is not permissible under the law. He also argued that the prosecution could not prove the motive attributed to the appellant. He asserted that the appellant/ Shahnawaz has been falsely implicated by the complainant due to political rivalry and on the instigation of Sardar Bahadar Khan Seehar MNA. Lastly, he argued that the learned trial Court did not appreciate the evidence in true perspective and the prosecution has failed to prove the charge against the appellant/Shahnawaz beyond reasonable shadow of doubt. He pleaded that the impugned judgment may be set aside and the appellant/Shahnawaz be acquitted of the charges.
' In support of his argument, learned counsel for the appellant/Shahnawaz has relied upon the following judgments:
(1) 2009 PCr.LJ 1022, (2) PLD 1975 SC 588, (3) 1985 SCM R 160 (4) 2010 SCM R 1604, (5) NLR 2004 Criminal 676, (6) PLD 1994 SC 178, (7) PLD 1994 SC 679 and (8) 1983 SCM R 428.
9. Mr. M. Abdus Sattar Chughtai, learned counsel for appellants namely Arshad Munir and Waseem Ahmad submitted that the said appellants were declared innocent in three successive investigations, which were never challenged by the complainant. He further stated that Gul Muhammad alias Makku, who was cited as an eye-witness in the F.I.R. Was not produced by the prosecution during the trial and the presumption is that had he been produced, he would not have supported the prosecution story. He maintained that since the place and time of the murder of the two deceased ladies is surrounded in mystery, and as such the two appellants namely Munir Arshad and Waseem Ahmad could not have been legally convicted for commission of an offence under section 201 P.P.C. He also referred to the report of the Chemical Examiner (Exh.P.0) wherein the vaginal swa bs were not found to be stained with semen.
10. Conversely, Mr. Manzoor Hussain Butt, learned counsel for the complainant explained that the delay in registration of the case occurred primarily due to the fact that the concerned police station is situated at a distance of 18 k.Ms as is evident from the He submitted that the accused could not have possibly found burying the dead bodies of the two ladies, had they not murdered them. He contended that the appellant/Shahnawaz was working as a labourer in the field, wherein the deceased ladies were being buried. He claimed that the complainant, who is the husband and real father of the two deceased ladies respectively cannot be expected to substitute the real culprits with the present appellants. He denied the existence of any political rivalry between the complainant and the accused. He maintained that the medical evidence fully corroborated the ocular account. He emphasized that the absence of proof regarding the commission of 'zina' with the deceased ladies by the present appellants would not ipso facto establish that they had not murdered them. He further maintained that Sardar Bahadar Khan Seehar, MNA did not appear as a witness to support the prosecution story. He also contended that two women ordinarily could not be murdered by one accused, particularly in the manner mentioned by the witness of the prosecution and as such, the learned trial Court wrongly acquitted Arshad Munir and Waseem Ahmad from the charge under section 302 read with section 34 P.P.C. He further submitted that the recovery of weapon of offence and other articles belonging to the deceased ladies, on the pointation of appellant/Shahnawaz, fully connect him with the commission of the offence. He clarified that the appeal against acquittal of accused/ Arshad Munir and Waseem Ahmad from the charges under section 302 read with section 34, P.P.C. And under section 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was filed within the period of limitation in the Hon'ble Lahore High Court Lahore, which was subsequently transferred to this Court. He claimed that the learned trial Court rightly convicted the appellant/Shahnawaz for the commission of "qatl-e-amd" of Mst. Muradan and Mst. Kalsoom. He pleaded that the acquittal of Arshad Munir and Waseem Ahmad on the same set of evidence may be set aside and they may also be convicted for the offence of qatl-e-amd' of the aforementioned two ladies. Finally, he requested for maintaining the convictions and sentences awarded thereof to the appellants by the learned trial Court as the prosecution had fully proved its case beyond reasonable shadow of doubt.
' In support of his contention, learned counsel for the complainant has relied upon the case-law reported as 1977 PCr.LJ 859 and PLD 2003 SC 656.
11. M?. Tariq Javed, Deputy District Public Prosecutor appearing on behalf of the State, while adopting the arguments advanced by the learned counsel for the complainant added that the blood-stained earth was not only collected by the I.O. From the spot but the same was also found to be stained with blood according to the report of the Chemical Examiner/Exh.P.O. He pointed out that the negligence on the .Part of the Investigating Officer in respect of the non-identification of the articles/ornaments of the deceased ladies, which were recovered on the pointation of appellant/Shahnawaz, is not fatal to the prosecution case. He denied the chances of false implication of the accused by the complainant as he could not implicate innocent persons in a case of murder of his wife and daughter respectively at the instigation of any politician. He emphasized that all the appellants were seen by the eye-witnesses i.e. P.W.7 and P.W.8 burying the dead bodies and as such, all the three accused/ present appellants should have been convicted for commission of an offence falling under section 302(b), P.P.C. He argued that the acquittal of accused namely Arshad Munir and Waseem Ahmad recorded by the learned trial Court is not tenable in the law.
' In support of his argument the learned D.D.P.P relied upon the following judgments:--
(1) 1983 SCM R 806, (2) 1984 SCM R 646, (3) 2010 SCM R 1020, (4) 1995 SCM R 1365 and (5) 2005 SCM R 427.
12. We have heard the learned counsel for the appellants, complainant as well as the learned D.D.P.P at length. We have also minutely examined and evaluated the oral and the documentary evidence available on the record.
13. At the outset, we would like to observe that there are sufficient grounds for condonation of delay in filing the Criminal Appeal No.65-L-2010 as the same was initially filed in Lahore High Court Multan Bench Multan and the same was returned vide order dated 6-7-2009 with the direction to institute the same in the Federal Shariat Court Pakistan. Hence, the delay in the institution of the aforementioned appeal is condoned.
14. A bare perusal of the F.I.R. Would reveal that the occurrence took place at `peshiwela'
(afternoon) on 12-8-2003 whereas, the F.I.R. Was got recorded at 9-30 p.m. On 12-8-2003 i.e. After a delay of about 7/8 hours. Ghulam Ali/complainant while appearing as P.W.7 admitted in his cross- examination that after seeing the dead bodies, he proceeded to his own house from the place of occurrence instead of the police station and left for the police station only after arrival of his relative from Chak No.80/TDA. The complainant/P.W.7 during the course of his cross-examination also admitted that the dead bodies were searched from the sugarcane at 'Ishawela' in the presence of 20 to 30 persons whereas, not only in the F.I.R. But also in his statement as P.W.7, the complainant along with his son Abdul Rehman/P.W.8 and brother Noor Muhammad or Gul Muhammad (not produced) statedly saw the accused digging the earth and burying the dead bodies of Mst. Muradan and Mst. Kalsoom in the mud at 'peshiwela' (afternoon). P.W.7 and P.W.8 not only identified the dead bodies but also took them out of the mud in the afternoon of 12-8-2003.
Such an unexplained delay in lodging of the F.I.R. Would lead to inference that occurrence was unwitnessed and the complainant availed enough time to deliberate, consult and fabricate a false story. Even the post mortem examination of the deceased ladies was conducted on 13-8-2003 at 1.00 p.m. i.e. After approximately 22to 28 hours of the death. In this back-drop, the possibility cannot be ruled out that the intervening period could have been consumed by the complainant for concocting a story in consultation with his relatives to falsely implicate the present appellants as there was no eye-witness of the murder of the two ladies/Mst. Muradan and Mst. Kalsoom. In this regard, the following portions of the statements of P W .7/complainant/Ghulam Ali and P.W.9/Atta Hussain, S.I who was the I.O. Of this case, are extremely relevant: ' P.W.7 "We have not seen at what place deceased were done to death, however, dead bodies were recovered from the aforesaid sugarcane crop. We do not know at what time deceased were done to death by the accused."
' P.W.9 "Correct time and place of murder of deceased did not come into my notice during investigation and witnesses could not point out the same."
' Admittedly, the other eye-witness i.e. P.W.8/Abdul Rehman had also not seen the accused/present appellants committing the murder of Mst. Muradan and Mst. Kalsoom. Hence, it is established from the record that no one had seen the accused/ present appellants committing `qatl-e-amd' of Mst.
Muradan and Mst. Kalsoom. The mere allegation that the present appellants were seen digging the earth and burying the dead bodies of Mst. Muradan and Mst. Kalsoom in the mud is not sufficient to hold that the said two ladies were actually murdered by the present appellants. At the most, it could be a presumption and it is a settled principle of law that no accused could be convicted unless strong ocular or circumstantial evidence is available on record to prove his guilt. Needless to mention there that benefit of doubt is to be given to an accused as matter of right and not as a matter of grace.
15. We are further strengthened in arriving at this conclusion by the submissions made by the learned counsel for the complainant as well as the learned Prosecutor, who argued that two women could not be murdered by one person in the manner narrated by the prosecution witnesses. Nevertheless, not only two accused/appellants namely Arshad Munir and Waseem Ahmad were declared innocent during investigation but also acquitted by the learned trial Court.
The acquittal of the aforementioned two accused, who were allegedly seen by P.W.7 and P.W.8 committing the same act would adversely affect the credibility of the witnesses and creates a serious dent in the prosecution story. It is significant to mention here, that the case of the convicted accused/ Shahnawaz could not be distinguished from the acquitted co-accused namely Arshad Munir and Waseem Ahmad. The Hon'ble Supreme Court of Pakistan in the case of (Akhtar Ali and others v. The State) reported in 2008 SCM R 6 has laid down that credibility of ocular evidence was not divisible and the accused could not be convicted on the basis of same evidence without any independent corroboration. The complainant/Ghulam Ali had cited his real brother Noor Muhammad (mentioned as Gul Muhammad by P.W.8) as an eyewitness of the incident but he was not produced and given up by the Prosecutor as being unnecessary, for reasons best known to them and this has also made the prosecution story doubtful. Hence, the ocular account of the occurrence furnished by the prosecution is not trustworthy or confidence-inspiring and the accused/ present appellants could not have been convicted on the basis of a such inherently weak and improbable prosecution story.
16. Now, adverting to the medical evidence produced by the prosecution in this case, we are constrained to observe that according to the statement of P.W.5/ Dr.Sirtaj Tirmazi, fatal injuries to Mst. Muradan and Mst. Kalsoom were caused by sharp-edged weapon, the head of Mst. Kalsoom Mai was found separated from the rest of her body. No doubt, P.W.9 stated that Shahnawaz/appellant while in police custody led to the recoveries of `sota' Exh.P/7 and 'kassi'
Exh.P/8 on 24-8-2003, which were taken into possession vide recovery memo Exh.PM and attested by P. Ws Hafiz Muhammad Ameen and Ghulam Haider. However, neither the said 'kassi' Exh.P/8 was sent to the Chemical Examiner or Serologist for detection of human blood nor there is any irrebuttable evidence on record to prove that the injuries sustained by Mst. Muradan and Mst.
Kalsoom could be caused by a 'kassi' particularly, when the edges of wounds show that it was a case of smooth and clean cutting. Furthermore, P. W. 5/Dr . Sartaj Tirmazi admitted in her cross- examination that injury No.2 found on the body of Mst. Kalsoom could be caused by a forceful blow of dagger or 'churry' and injuries No.3 to 5 in the case of Mst. Muradan were of simple nature and could be caused by 'churry', knife (light weight sharp-edged weapon). We are also not convinced that injury No.1 sustained by Mst. Kalsoom Mai (i.e. Head separated from the rest of the body by "sharp cut" from left side of the neck toward the right side and cutting the whole neck at the level of 3rd cervical vertebra) could be inflicted by the weapon of offence i.e. 'sota' Exh.P/7 and 'kassi'
Exh.P/8 allegedly recovered from the accused Shahnawaz, which were not found to be blood- stained. It is also significant to observe that P.W.5 admitted that there was difference of time in the murder of Mst. Muradan and Mst. Kalsoom due to absence of rigor mortis on the dead body of Mst.
Kalsoom. We also cannot ignore the statement of P.W.5/Dr.Sartaj Tirmzi wherein she categorically stated that no sexual intercourse was committed with both the victims. She also explained that without group matching of semens, Criminal liability of a particular person cannot be fixed. Even otherwise in this case, according to the report of the Chemical Examiner (Exh.P.0), the vaginal swa bs were not found to be stained with semen.P.W.5 has also gone to the extent of observing that Mst. Kalsoom Mai, who was unmarried at the time of her murder, was accustomed to sexual intercourse and her hymen was not intact. P.W.5 also did not find any sign of violence on the private part of the victims or any element of struggle or resistance on the part of the deceased ladies. In these circumstances, we are of the considered view that the ocular account of the incident is not at all corroborated by the medical evidence.
17. As far as the recovery of articles belonging to the deceased ladies i.e. Golden ear-rings (P/9) a nozzle pin of gold (P-10), one piece of shoes of each deceased (P/11 and P/12) and .a 'doppatta'
Exh.P/13) from the convicted accused/Shahnawaz by P.W.9 is concerned, the same cannot be relied upon for maintaining conviction of the said accused as there was no mention in the F.I.R. Or in the statements of the prosecution witnesses that the deceased ladies were wearing the aforementioned ornaments. Furthermore, the said articles were never got identified by the I.O. From the complainant or any other witness. Additionally, the said articles belonging to the deceased ladies were not only recovered at a belated stage of physical remand of the convicted accused/Shahnawaz but also from muddy wet surface of sugarcane field. The aforementioned articles were not even sent to the Chemical Examiner or the Serologist for detection of blood. The earth, which was collected by the Investigating Officer from the place of occurrence and found to be stained with blood by the Chemical Examiner, is also of no help to the prosecution as admittedly, there was water/mud in the sugarcane field, where-from, the dead bodies of Mst.
Muradan and Mst. Kalsoom were digged out. Hence, the alleged recoveries from Shahnawaz/ appellant did not connect him with the commission of the offence of murder of Mst. Muradan and Mst. Kalsoom. In this regard; we would like to refer to the judgments reported in 1983 SCM R 428 (Arif Hussain and another v. The State) and N.L.R 2004, Criminal 676 (Muhammad Abdullah v. The State).
' It is pertinent to mention here that the deceased ladies had gone for grass cutting but no sickles were recovered from the place of occurrence by the I.O.
18. As far as the motive for the alleged occurrence advanced by the complainant, is concerned, we would like to observe that the motive is a double-edged weapon which cut both ways. Enmity can prompt a person to commit crime but also on the other hand, could be used for false implication in a case. In the instant case, it has been established from the ocular account as well as the medical evidence that the deceased ladies were not subjected to sexual intercourse (zina). Similarly, there is no evidence available on the record that the accused attempted to commit 'zina' with the deceased ladies and on their refusal, the accused/present appellants committed the `qatl-e-amd.
Of Mst. Muradan and Mst. Kalsoom.
19. Having discussed the above aspects of this case, we are left with the last charge against the present appellants i.e. Commission of an offence under section 201, P.P.C. In this context, it would be advantageous to reproduce hereunder section 201 P.P.C. Along with illustration:-- "Section 201. Causing disappearance of evidence or offence, or giving false information to screen offender.---Whoever, knowing or having reason to believe that offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false.
' If a capital offence: shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; ' If punishable with imprisonment for life: and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; ' If punishable with less than ten years imprisonment: and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence or with fine; or with both.
' Illustration: A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years and also to fine.
' A plain reading of the aforementioned section of P.P.C. Would reveal that three ingredients are essential to constitute the said offence (i) knowledge (ii) commission and (iii) intention. It is worthwhile to mention here, that the prosecution has miserably failed to prove that who has actually murdered Mst. Muradn and Mst. Kalsoom, therefore, the present appellants cannot be held to have the knowledge of the offence and the intention of screening the offender from the legal punishment. The murder of Mst. Muradan and Mst. Kalsoom was admittedly unwitnessed and shrouded in mystery and as such, the provision of section 201, P.P.C. Could not be applied to the accused/present appellants. The entire case of the prosecution hinges upon the allegation that P.W.7 and P.W.8 had seen the accused/present appellants digging the earth from the sugarcane crop field and burying the dead bodies of Mst. Muradan Mai and Mst. Kalsoom Mai in the mud.
Suffice to observe, that the field of the above mentioned sugarcane crop was visible from the nearby 'katcha' road as well as the brick-kiln, where people were normally present. No man of ordinary prudence what to talk of a criminal, would pick up courage and take the risk of burying dead bodies of the two women at such like place and that too at 'peshiwela' (afternoon)in day- light. Similarly, the accused who were allegedly trying to bury the dead bodies in wet muddy field could not escape from the place, without leaving their identifiable foot-prints. Even otherwise, the complainant has alleged that the present appellants committed the murder of Mst. Muradan and Mst. Kalsoom and it has been held in PLD 1963 Peshawar 178 that the murderer him-self trying to screen the offence and remove the evidence cannot be convicted under section 201, P . P. C .
20. In addition to the aforementioned weakness of the prosecution case, there are flagrant discrepancies in the statements of the star witnesses of this case i.e.P.W.7 and P.W.8. Inasmuch as that P.W.7/ complainant admitted that he was not present in the house at the time when his daughter and wife had gone out for cutting grass, whereas, the real son of the complainant namely Abdul Rehman while appearing as P.W.8 specifically stated that he along with his father/Ghulam Ali/P.W.7. Was present in the house when his mother Mst. Muradan Mai and sister Mst. Kalsoom went on a donkey cart for cutting grass from the sugarcane crops of Ghulam Abbas Smethia. It is also highly improbable that a donkey cart would return to the house of owner without any person from a distance of about one mile through a busy road.
21. The upshot of the above discussion is that the prosecution case is pregnant with serious doubts and full of contradictions. The circumstances of this case strongly militate against the correctness of the prosecution story and the same is undoubtedly improbable. We would like to observe that finding of guilt should only be rested surely and firmly on the evidence I produced in the case and plain inference that may irresistibly be drawn from the evidence. If a criminal case is to be decided merely on surmises and conjectures or high probabilities to prove the guilt of an accused, the golden rule of benefit of doubt to the accused which is deep-rooted in our country and has been dominant feature of administration of justice with consistent approval of this Court, will be reduced to naught.
22. The case of Shahnawaz/appellant is at par with the case of co-accused/Arshad Munir and Waseem Ahmad, who have been acquitted by the learned trial Court from the charge of commission of 'qatl-e-amd' of Mst. Muradan Mai and Mst. Kalsoom. The conviction of the appellants under section 201, P.P.C. Is also not sustainable under the law. There is no legal ground for accepting the appeal of the complainant for recording the conviction of Arshad Munir and Waseem Ahmad under section 302(b), P.P.C. And under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned trial Court erred in law while recording the conviction K of the appellant/Shahnawaz under section 302(b) read with section 34, P.P.C. As well as section 201, P.P.C. Resultantly, the convictions of the appellants recorded and sentences awarded thereof by the learned trial Court are set aside. Consequently, the Criminal Appeal No.77- L-2009 filed by Shahnawaz/appellant and Criminal Appeal No.85-L-2009 filed by appellants/Arshad Munir and Waseem Ahmad are allowed. Appellants/Arshad Muir and Waseem Ahmad present on bail, their bail bonds are discharged. Appellant/Shahnawaz is in jail, he be released forthwith, if not required in any other case.
23. Criminal Appeal No.65/L of 2001 filed by complainant/Ghulam Ali against acquittal of appellants from charges under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 302 read with section 34, P.P.C. Is dismissed.
24. Murder Reference No.11-I of 2009 is answered in Negative and the sentence of death awarded to Shahnawaz by the learned trial Court is not confirmed.
' These are the reasons for our short order dated 27-8-2013.