MUHAMMAD MUNIR FAROOQUI, J.-Miana son of Wali, caste Dinghi, aged 30 years, was convicted under section 302 of the Pakistan Penal Code by the learned Additional Sessions Judge, Multan, in camp at Dera Ghazi Khan, on 28th June 1969, who sentenced him to death and submitted the record to this Court for confirmation of the sentence while the correct--ness of the conviction itself has been questioned by the appel--lant and both these matters; the reference under section 374, Cr. P. E. And the appeal are being disposed of by this judgment.
2. The incident which is the subject-matter of this case took place on 30th July 1966. It was alleged that on the eventful morning Muhammad (P. W. 12) had left his camel for grazing in the bushy area near Bund Dauranwala in village Wahowa and he went there at 10 a.m. To bring back his camel when he noticed two unidentified persons concealed in the Lai bushes. He quietly came back to his village and informed Ghulam Sarwar deceased about it, who taking along with him Nura (P. W. 13), Sheru (P. W. 14) and one Haider accompanied Muhammad P. W. In that direction after deputing Ilahi Bakhsh (P. W. 7) to inform their landlord Sardar Ahmad Nawaz about it. On reaching quite close to those bushes Ghulam Sarwar called them out and enquired as to who they were. One of them disclosed his identity giving his name as Miana (appellant) who was asked to come out, but he told them to mind their own business as they had nothing to do with them. Miana appellant armed with a gun and his companion with a dagger then emerged from the bushes and ran away towards the excluded area. Ghulam Sarwar deceased and his companions pursued them in order to apprehend them. They were carrying sticks and faced with this situation Miana appel--lant turned round and started firing at the complainant party. Three of his shots proved ineffective and the 4th is said to have just grazed the upper part of the left buttock of Nura P. W. While the fifth bullet went through the chest of Ghulam Sarwar deceased who fell to the ground. His companions in order to attend to him gave up the chase and on approaching Ghulam Sarwar found him dead.
The appellant and his unidentified companion dropping a bundle of clothes etc. Succeeded in making good their escape. Leaving the dead body under the care of above-named persons, Muhammad P. W. Went to the police station and lodged his report (Exh. P. A.) about it there at 1-15 p.m. The same afternoon.
3. The Station House Officer was not present at the police station at that time, so Ghulam Haider Khan, Head Constable (P. W. 15) after registering the case against the appellant and his companion came to the spot, where he held the necessary inquest on the dead body and despatched it to the mortuary under the escort of Foot Constable Khadim Hussain (P. W. 3) along with the injury statement Exh. P. J. The inquest report had, however, not seen the light of the day during this trial. He then inspected the spot and recovered three empties Exh. P.5/1-3, which were made into a sealed parcel vide memo. Exh. P. D. He also secured blood-stained earth from the place of the dead body and sealed it into a parcel vide memo. Exh. P. E. The bundle thrown away by the companion of Miana appellant was also taken into possession which was found to contain some clothes and silver ornaments detailed in Exh. P. F. Nura P. W. Produced before the Head Constable his chadar (P. 26) which was taken into possession and sealed into a parcel vide memo.
Exh. P. G. Muhammad Afzal Khan Patwari (P. W. 6) had prepared the site plan Exh. P. N. Miana appellant had absconded and was arrested on 16th January 1967, i.e. Five and a half months after the occurrence, so his gun could not be recovered while his companion was still at large.
4. Dr. Ijaz Ahmad Khan (P. W. 2) examined Nura P. W. On 31st July 1966, at 11 a.m., and found a lacerated wound with reddish brown colouration along with slight swelling in the middle, horizontally about 2" above the left buttock which is two inches long and 3/4 inch vide memo. Exh.
P. K.
5. Dr. Syed Muhammad Ramzan Shah (P. W. 1) held autopsy on the dead body of Ghulam Sarwar deceased on the morning of 1st August 1966, and observed the following injuries over it :-
(1) Gunshot wound which had both the wounds of exit and entrance. The wound of entrance was situated on the tack of right side of the chest. It was a single round hole with a diameter of 1/4". The bullet had gone through the body breaking the back shoulder bone at its lower angle.No bullet or its remnant had been found in they body. The bullet pierced the body wall, the right lung covering the right lung at its middle lobe. The heart was safe and penetrating through the left lung at its lower lobe. With its covering and the body wall on the same side, fracturing the left fifth rib and making a wound on exit which was found in shape as a larger circumference of 1 -----.
(2) A scratch mark was found on the back of left hand of the size 1 --x -- ---.
(3) A scratch mark was found over the left calf 2" x -----. The injury was situated 3" above the left lateral malleous.
(4) Multiple scratches over the back of left foot. No other abnormality organic or physical or any mechanical was found in the abdomen, head, thorax and of bones joints.
In his opinion, the gunshot wound was ante-mortem. There was only single hole of entrance and exit. The skin round the wound was not coloured. The edges of the entrance wound were inverted and that of exit were averted. The death had occurred due to blood loss and respiratory failure due to injury No. 1. The other injuries were simple and blunt.
The death had occurred between 15 to 20 minutes after the infliction of injuries, and the post- mortem had been performed more than 48 hours after the death. Exh. P. B. Is the correct carbon copy of his post-mortem report.
6. At the trial the statements of these two doctors were transferred to the record of the Sessions case under section 509 of the Criminal Procedure Code to prove that the injuries suffered by Nura P. W. And the death of Ghulam Sarwar deceased were the result of violence, while the direct evidence regarding the commission of the crime was furnished by Muhammad (P. W. 12), Nura (P.
W. 13) and Shera (P. W. 14) who had duly supported the above narration about it. Ahmad Nawaz (P.
W. 9) and Imam Bakhsh (P W. 10) deposed about the recoveries while Ghulam Muhammad (P. W. 11) stated that the articles recovered from the bundle thrown by the unidentified companion of Miana appellant belonged to him and were stolen from his house on the preceding night. The appel--lant was, however, acquitted in this theft case.
7. The appellant denied the allegations and pleading his false implication on account of his enmity with Asad Ullah Khan averred his innocence but led no evidence in his. Defence.
8. The learned trial Judge accepted the prosecution evidence and convicted the appellant as stated above.
9. Learned counsel for the appellant has not disputed the facts of the case before us and although the appellant had not set up a plea of self-defence he urged that in the admitted circumstances the appellant was justified in using his gun (rifle) to frustrate the wrongful attempt of the complainant party to apprehend them as they were not allowed under any provisions of law to do so while the learned State Counsel invoked the provisions of section 59 of the Criminal Procedure Code in this respect. This section deals with the powers of a private individual to apprehend the culprits, so it will not be out of place to reproduce its relevant portion, which reads as follows :- "Any private person may arrest any person who in his view commits a non-bailable and cognizable offence or any pro--claimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, take such person or cause him to be taken in custody to the nearest police station."
10. The literal analysis of this subsection would reveal that the legal umbrella provided by the statute protected the private individual only if he could prove that the person sought to be apprehended had committed some non-bailable and cognizable offence "within his view", or he was a proclaimed offender.
11. This important provision of law which appears to have been incorporated in the Criminal Procedure Code with the apparent object of encouraging co-operation and assistance of the public in general in bringing to book the miscreants indulg--ing in serious offences, has been subject of treatment in many cases coming before this Court and its scope has been enlarged from time to time. Attempt to commit a cognizable and non--bailable offence was included in its orbit by the pronouncement of this Court in Dost Muhammad v. Emperor (AIR 1945 Lab. 364). Some Courts in India expressed the view that this provision should not be given too constrained a construction in deciding such cases, so this point was reconsidered by this Court in Muhammad Ishaq and another v. Crown (PLD 1954 Lab. 45and Kaikaus, J., who was then a member of this Bench, relying on Arumuga Goundan v. The Crown AIR 1924 Mad. 3 84) and Sheo Balak Dusadh v.
Emperor AIR 1948 All. l00) confirmed the view that the words "in his view" used in this section are to be liberally interpreted to include the persons called by those who had seen the commission of the crime to effect the arrest of persons accused of such offences. The facts of this case are :- "On the day of occurrence at about peshiwela, Nawab Lambardar deceased and Abdur Rehman alias Manha were resting under a tree in the field of Nawab when Feroze P. W. Came and complained to them that the accused had diverted the canal water by making a takki in the canal minor as a result of which their fields were affected. Nawab said that they should collect a panchayat, and approach the accused. A number of persons about 12 in number, includ--ing Jhanda Lambardar, were collected and they all proceeded towards the fields where the accused were stated to be. Nawab was on horse back and remaining were on foot. When the party were at a distance of about 60/70 karams from the accused, Nawab Lambardar called out to the accused to stop the takki. According to the prosecution case, the appellant replied to this demand by saying, "They jao tohanu banna Re ghalne aan". At this, Nawab deceased directed Abdur Rehman P. W. To close the takki himself. While Abdur Rehman was going to close the takki, the two appellants got up and came nearer to Nawab and Abdul Rehman by about 20/30 karams.
Muhammad Ishaq appellant was armed with a rifle while Fateh Muhammad was armed with a gun. Both took aims and fired at Nawab and Abdur Rehman P. W. The bullet from the rifle of Muhammad Ishaq hit Nawab deceased while he was alighting from his horse. He fell down and died almost instantaneously. Abdur Rahman was hit by the gun of Fateh Muhammad. He too fell down but the injury not proved fatal. The appellants tried to run away. From the opposite side were coming Allah Dad and Majhi, P. Ws. Who had already heard the shots. The complain--ant's party shouted ,out to Allah Dad and Majhi not to allow the appellants to run away. When Allah Dad and Majhi were sent towards the appellants to prevent their escape the appellants fired two more shots one of which hit Allah Dad and the other Majhi. They fell down and the accused made good their escape."
The conviction of the appellants in this case in respect of the attack on Allah Dad and Majhi P. Ws.
Was challenged on the ground that these two persons had no right in law to arrest the appellants as they had not seen them firing at Nawab and Abdur Rehman. This argument was repelled by his Lordship in the following terms :- "In the present case, Allah Dad and Majhi had already themselves heard the shots fired. They saw the accused running away and they heard Jhanda Lambardar and others raising a hue and cry and saying that the appellants had killed a man. Jhanda Lambardar and others asked Allah Dad and Majhi to arrest them, Under the circumstances the offence can very well be said to have been committed in their view for it is by the evidence of their own eyes and ears that they discerned its existence. What they saw and heard left no doubt in their minds that the appellants were running away after firing at people.
The second reply to the argument is that in this case Jhanda and others certainly had the right to arrest, for the offence was committed in their view and if they had that right -they could also use Allah Dad and Majhi for the purpose of making the arrest. Under subsection (2) of section 46, Cr. P.
C. a person entitled to arrest can use all means in his power to arrest the culprits. This will include the employ--ment of other persons to effect the arrest. Jhanda and others having called upon Allah Dad and Majhi to make the arrest they would be justified in doing so even from this point of view."
This view was consistently followed in all the later cases involving this point till the pronouncement of the Supreme Court in State v. Muhammad Akbar (PLD 1966 SC 432) wherein after a reference to the above case their Lordships held as under :-- `'As to that case, it is necessary to point out that the word `in his view' are of the most specific nature and in their natural and proper meaning, they are confined to things actually seen. To extend these words to cover a case where action is taken on the basis of a reasonable ground to think that a person sought to be arrested has committed a non-bailable and cognizable offence, may, in our view, be regarded as an attempt to legislate."
This dictum of law held the field till recently when both the views expressed in the above two cases were reconsidered by their Lordships of the Supreme Court in Sultan Ahmad and another v. The State (PLD 1970 SC 206) who were pleased to hold that the shield provided by this provision of law too private individual to apprehend culprit committing cognizable and non-bailable offences in his presence is not limited only those who actually see commission of crime by their own eyes but also available to those who come to their assistance on their outcry for help. 1n order to appreciate the implicationer of this pronouncement it will not be out of place to refer to the facts of this case :- "The appellants, who were friends, bearing no other relationship inter se lived in district Lyallpur. A sister of Sultan appellant, Mst. Nur Begum by name, was married to Nazi Ahmad P. W. In Chak Bhoola in the District of Gujrat. It was alleged that Nazir Ahmad aforesaid had discarded Mst. Nut Begum some time before the occurrence and was harbouring Mst Rabia in his house as a keep with the intention of marry--ing her. Sultan Abmad appellant was annoyed over this state of affairs out of sympathy for his sister.
According to the prosecution case, the appellants set out for the house of Nazir Ahmad in Chak Bhoola on the 25th of September 1965, and reaching there at digerwela knocked at his door which was opened by Mst. Rabia. Sultan was armed with a pistol and Rafiq with a rifle. Immediately, both of them tired and killed Mst. Rabia on the spot. Thereafter, then ran away. Nazar Hussain and Talib Hussain P. Ws., who lived in the neighbourhood and were, at the time, going in the street towards their house, witnessed the occurrence and ran after the appellants making any outcry. On the way they were joined in the chase by P. Ws. Muhammad Inayat, Muhammad Khan, Shah and Ali Muhammad deceased. The appellants fired at the pursuit party which nonetheless continued the chase.. When they had covered a distance of about three-quarters of a mile and had reached the well of Maqbool Shah, Ali Muhammad deceased overtook Sultan and tried to catch hold of him.
Sultan told him to desist and when he did not, he fired at him with his pistol hitting him in the chest causing his immediate death."
The argument that the murder of Mst. Rabia not having been committed by the appellants within the view of Ali Muhammad (deceased) he had no legal right to pursue the appellants and much less to effect their arrest, so Sultan appel--lant was justified to kill him in order to avoid his illegal arrest and damage to his own person at his hand was repelled by their Lordships in the following terms :- "In our view, section 59 should not be construed so as to burden the Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-bailable offences in their presence, it bad intended that this shield is to be limited only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who --come to their assistance on their entry for help. Such a restricted view, in our opinion, would destroy the much wanted but rarely displayed public spirit on the part of the neighbours and others who might come to the rescue of the-- victims of dastardly crimes and help them in bringing the-- culprits to book"
Learned counsel for the State relying on this authority urge& that their Lordships bad thereby re- instated the view expressed in Muhammad Ishaq's case and the terms in his view in section 59, of the Criminal Procedure Code when liberally construed would cover the facts of the instant case, but we are not inclined to accept the latter part of this contention as the prosecu--tion evidence recorded in this case is silent about any such element which could connect Miana appellant and his com--panion in any manner with some cognizable and non-bailable offence.
12. All that had been deposed against them in this case.: was that Miana appellant was found sleeping and his compa--nion sitting beside him secluded by the bushes at noon time on the eventful day in a forest close to his own village and when the complainant party called out he had disclosed his identity to set at rest their curiosity, if any, about them but it did not have the desired effect as the complainant party shouting al them demanded that they should come out of the bushes. The appellant and his companion reluctantly obeyed them even in that, but finding them armed with sticks they ran away in the opposite direction. The complainant party with sticks in their hands gave them a chase to catch hold of them with the above result. There was no legal evidence on the record that the appellant or his companion was a fugitive from law and required as an absconder in any case. There was no asser--tion at all (as in the above referred two cases) that any one of their pursuers had actually seen them committing any such offence or had joined the chase on being called out by those who might have seen the commission of any crime by them assist in effecting their arrest in accordance with sub-clause (2) of section 46 of the Criminal Procedure Code. There was no such element either in the charge-sheet drawn out against them or in any question put to them in their examination under section 342, Cr. P. C. However, liberal construction may be put on these circumstances, there was no indication that the appellant or his companions were concerned in any manner with any cognizable or non-bailable offence and howsoever liberally one may interpret the provisions of section 59 of the Criminal Procedure Code the complainant party was not autho--rised to apprehend them.
13. Mere presence of the appellant and his companion in pasture like place frequented by graziers situate quite close to the basti within half a mile of the police station itself at such a busy hour of the day would rather rule out any unfavour--able inference against them. Their carrying a --- gathrri--- even along with a gun (rifle) and the unhappy reputation of Miana appellant would not have improved the prosecution case as none of the police officials examined as witnesses against them had uttered a single syllable about his alleged shady antecedents. Bare opinion of Muhammad P. W. That he was a thief and was living in the hilly area as an outlaw was not enough to dub him as a criminal. Even the factum of theft in the house of Gul Muhammad P. W. Had not been discovered till then so there was no occasion for a presumption that the gathrri contained stolen articles or they were either thieves or receivers of stolen property. It may be mentioned here that the appellant was separately tried for the theft but was acquitted and these articles were not produced in the Court at this trial when Gul Muhammad P. W. Was examined so be could not state that these were the proceeds of the burglary committed in the house on the night preceding that occurrence. None of the prosecution witnesses had stated that they suspected them as thieves. In fact mere suspicion, however, well founded could not have justified their attempt to apprehend them under the provisions of section 59 of the Criminal Procedure Code.
14. The Legislature has imposed these limits on the exercise of the power under section 59 of the Criminal Procedure Code only with a view to safeguard against its wanton abuse by irresponsible elements much to the insult and annoyance o innocent persons. This pronouncement of their Lordship cannot be understood to have given a free hand to private individuals to detain and question the bona fides of anyone they ma choose on the basis of a bare suspicion about their belonging, and movements which is the function of a police officer only. For that matter too an important restriction has been placed even on the powers of a police officer as he cannot arrest any person without a warrant unless a reasonable suspicion exists against him that he is concerned in a cognizable offence (bailable or non-bailable), as would appear from a perusal of section 54 of the Criminal Procedure Code.
Their Lordships keeping in mind the object of the Legislature in bringing this provision of statute viz., enlisting of public support in apprehending such offenders, have merely extended the scope of the statutory protection to another category of persons connected with the crime by sound if not by sight who in their valour respond to the outcries of the victim or the alarm raised by those who had actually witnessed it. In other words, their Lordships have only clarified that if the provisions of section 59 supplemented by sub-clause (2) of section 46 of the Criminal Procedure Code permitted the association of others in apprehending such offenders it followed as a necessary corollary that the cover provided by section 59 could not be denied to those who joined them in this perilous task in public interest.
15. Going back to the facts of this case we find that the present case is quite distinguishable from the two cases referred to above Muhammad Ishaq and others v. The Crown and Sultan Ahmad and another v. The State. It is quite clear from the prosecution evidence itself that the appellant and his companion on finding the complainant party armed with sticks got apprehensive of their intentions about them and in order to avoid an encounter they elected to slip away and the hot chase given to them confirmed their fears, that the complain--ant party were not a peaceful mission. It had rather betrayed their aggressive designs and finding themselves in that threaten-- ing situation the appellant must have entertained a reasonable apprehension that they might suffer some grievous hurt in consequence thereof, if they failed to effect their escape, so the appellant was justified in using his gun (rifle) to thwart their wrongful arrest at the hands of the complainant party. In doing -so, the appellant and his companion appear to have resorted to the use of the firearm only when they found themselves in imminent danger of being dealt with by a party armed with sticks. He had taken the precaution first to deter them by firing some shots in the air (which according to the prosecution witnesses had missed Nura P. W.) but this did not have the desired effect of scaring them away and the effective shot was fired only when Ghulam Sarwar deceased reaching quite close to them had actually made a physical attempt to stop Miana appellant as admitted by Muhammad (P. W. 12). The upshot of this discussion is that the public spiritedness displayed by the complainant party in this case was uncalled for and they were themselves responsible for creating the situation resulting in the death of one of them, namely, Ghulam Sarwar deceased and injury to Nura P. W. So the provisions of section 59 even read with sub-clause (2) of section 46 of the Criminal Procedure Code did not cover their case.
16. As regards the right of self-defence, the law makes the accused the sole judge of his own danger and permits him to repel the attack even to the extent of taking the life of his adversary if it fell in any of the descriptions enumerated in D section 100 of the Pakistan Penal Code, as held in Karim v. The State (PLD 1960 Lab. 990). When assessed in the above background it was not an idle threat as the enacting attitude adopted by the complainant party from the very outset clearly reflected that they intended to put it into execution as observed in a recent case In re Bashir Ahmad v. The State (PLD 1970 Lah. 857). This right of private defence was thus clearly inferable from these admitted facts an circumstances of the prosecution case and has to be allowed t the appellant despite the fact that he had not claimed it in his statement under section 342 of the Code of Criminal Procedure as held in Ali Zaman v. The State (PLD 1963 SC 152).
17. There are some other salient features of the case which in our view had even otherwise rendered the prosecution case extremely doubtful and the most important of these inherent circumstances is the striking conflict between the medical evidence and the ocular account of the occurrence given by the alleged eye-witnesses. According to the post-mortem report the wound of entrance was situated on the back of the right side of the chest which is inconsistent with the assertion made by Muhammad (P. W. 12). In his cross-examination he stated that when Miana appellant fired at Ghulam Sarwar they were facing each other and it would be incorrect to suggest that Ghulam Sarwar was running and Miana appellant fired a shot from his back. Nura (P. W. 13) had also made a similar statement. He stated that Miana accused was standing when he fired at Sarwar and that Miana appellant was facing Sarwar at that time. The statement of Sheru (P. W. 14) is also on the same lines. He stated that Miana (appellant) used to fire towards us and while facing towards us he fired. Nura P. W. Also stated while mentioning his own injury that when Miana appellant fired at him he was facing towards him. We have reproduced the exact words of the witnesses about the shot fired by Miana (appellant) at Ghulam Sarwar deceased which demons-- trated that none of these persons had witnessed the occurrence.
18. The time of occurrence as alleged by these witnesses is also rendered doubtful by the medical evidence. Muhammad (P. W. 12) had stated that when he went to inform Ghulam Sarwar deceased about the presence of the two persons concealing in the bushes he (deceased) was taking his meals and immediately collecting the other P. Ws. He accompanied him to the forest culminating in his murder within a short time but strangely enough the doctor, who performed post---mortem examination on his dead body found his stomach and even large and - small intestines empty which belied the statement of the aforesaid witness. It indicated that the occurrence had taken place some four to six hours after he had taken his last meals. The occurrence is said to have taken place at dopehrwela while the post-mortem examination was performed in the morning on 1st of August 1966, at about 7 a.m. As it was summer during those days. In the opinion of the doctor more than 48 hours had elapsed since his death, which fixed the time of the occurrence in the early hours of the morning of 30th July 1966, i.e. At about 4/5 p.m. This would lend support to the suggestion made by the learned defence counsel in the cross-examination of the prosecution witness that Ghulam Sarwar deceased had met his death in the early hours of the morning and when the prosecution witnesses went out they found him lying dead in the jungle, and entry found dead in the column under the heading of symptoms observed before death also pointed in that direction. This would also explain the ugly attempt of the prosecution to suppress the inquest report which would justify the presumption that it was withheld as the version mentioned therein was inconsistent with the present prosecution case. Yet another feature which shrouded the entire prosecution case with still graver doubt is the unexplained delay in holding the autopsy on the dead body. According to the statement of the doctor. Syed Muhammad Ramzan Shah P. W. The dead body had reached the mortuary on 31st July 1966, and had been identified on the same day by Rahim Bakhsh, the brother of the deceased. There could be no earthly reason why the post- mortem examina--tion was deferred to the next day. A futile attempt was made by the police to explain this delay through Foot Constable Khadim Hussain (P. W. 3), who stated that he delivered the dead body at the mortuary on the third day as prior to that he was on leave which explanation had not been adopted by the doctor himself apparently because he was not on leave during those days. This unusual delay in post-mortem exami--nation would speak volumes about the deliberations of the Investigating Officer in giving the present shape to the case.
19. In the above background the injury alleged to have been suffered by Nura (P. W. 13) also appears to be a fabricated one and we are supported in this assertion by the absence of any injury statement prepared by the police about it. More--over no explanation was forthcoming as to why his medical examination was not held on the same day although there is a dispensary in village Wahowa itself and A. M. O. Incharge of this very dispensary examined him at 11 p.m. On the next day. His chadar (P. 26) was however, taken into possession by the police on the same day vide Exh.
P. G. But even in this memo there is no mention of any injury suffered by Nura P. W. This chadar was taken into possession presumably to show the corresponding cut over it and was sealed into a parcel, but it was never sent to the Forensic Science Laboratory or the Chemical Examiner for detection of any smell of gun powder or analysis of the blood stains alleged to have been found it.
This chador was not even shown to the doctor, who examined Nura P. W. For affixing his signatures at the cut if any corresponding to his injury, but there was no such cut in this chadar as it was found to have a large number of small holes only as would appear from the memo. Exh. P. G. The presence of the injury of Nura P. W. Could, therefore, not be used for corroboration of the eye- witness account given by the prosecution witness.
20. The learned Judge in convicting the appellant had also relied on his alleged absconding from the village for long time after the occurrence, although Miana appellant was E never questioned about it during his statement either at the close of the inquiry before the committing Magistrate or at the close of the trial in utter disregard of the provisions of, section 342 of the Criminal Procedure Code which requires' that any circumstance from which inferences adverse to the accused persons are sought to be drawn should be put to him to solicit his explanation if any about it as held in Din Muhammad v. The Crown (1969 P Cr. L J 1573), as also in Muhammad Sonafar All v. The State (1969 SCMR 461).
21. As a result of this discussion we find that the prosecu--tion case even otherwise is replete with grave doubts the benefit of which cannot be denied to the appellant. We accord--ingly accept this appeal and acquitting him of the charge levelled against him direct that he shall be released from jai', immediately if not required in any case. The sentence of death is not confirmed the reference is answered accordingly.