' SH. MUHAMMAD ZUBAIR, J.--- Abdul Ghaffar was tried under section 302, P.P.C. On two counts for the murders of Murtaza alias Ghunni and Iftikhar alias Younus by the learned Additional Sessions Judge, Faisalabad, who vide his judgment, dated 25-11-1990, convicted him thereunder and sentenced him under each count to suffer death and fine of Rs,5,000 or in default one year's R.I. And also to pay Rs,5,000 as compensation to the legal heirs of the deceased, failing which to undergo R.I. For six months.
' The convict has filed the present appeal, viz. Criminal Appeal No,850 of 1990 and the learned trial Judge has referred the matter to this Court under section 374, Cr.P.C. For confirmation of death sentence. We propose to dispose of both these matters by this judgment.
2. The occurrence took place on 27-5-1989 at 9-30 p.m. Outside the house of the deceased in the area of Chak No,189/R.B. Within the jurisdiction of Police Station Chak Jhumra. Statement Exh.P.K. Of Muhammad Bashir complainant (P.W.8) was recorded by Muhammad Ashiq S.I. (P.W.15), the same day at 11-00 p.m. On Canal Bridge Nulleywala. He sent the same through Allah Yar F.C. To the police station. Formal F.I.R. Exh.P.K./1 was drawn up by Muhammad Sajid H.C. (P.W.13) at Police Station Chak Jhumra, the same day at 11-20 p.m.
3. It is alleged that Mst. Bushra Bibi, sister of the appellant, was married with Iftikhar alias Younus' deceased. The appellant wanted to get her divorce from the deceased, who did not agree to it. On account of this grudge, the appellant is stated to have committed the murders of Murtaza alias Ghunni and Iftikhar alias Younus.
4. As for the main occurrence, Muhammad Bashir P.W.8 disclosed in his statement Exh.P.K. That he has five sons, out of whom three are married and two are unmarried. On the fateful night at about 9-30 p.m. When sons of the complainant, namely, Zulfiqar P.W.10, Mustafa P.W.11, Murtaza alias Ghunni and Iftikhar alias Younus deceased were sitting outside his house and electric bulb was on, the appellant appeared at the scene armed with a Chhuri. He told the aforesaid persons that he would not spare them. Muhammad Bashir complainant and his wife Mst. Inayat Bibi P.W.12 came out of the house on hearing the noise. The appellant attacked Murtaza with Chhuri and caused injuries on his abdomen and other parts of his body, who fell down. Iftikhar alias Younus tried to rescue Murtaza alias Ghunni. He too was injured by the appellant with the said weapon. Thereafter the appellant tried to run away. He was pursued by Zulfiqar P.W.10 and Mustafa P.W.11. They injured him with sticks. The complainant and his wife Mst. Inayat Bibi remained beseeching the appellant not to be so cruel, but he did not pay any heed to it. Murtaza alias Ghunni died at the spot on account of injuries sustained by him. Iftikhar alias Younus, who was then alive and the appellant in injured condition were transported to the Civil Hospital.
5. The investigation in this case was conducted by Muhammad Ashiq S.I. (P.W.15). After recording the statement Exh.P.K. Of Muhammad Bashir, he went to the spot, prepared the injured statement Exh.P.B. And inquest report Exh.P.C. Pertaining to the dead body of Murtaza alias Ghunni. He took into possession blood-stained earth from the place where the dead body of Murtaza alias Ghunni was lying vide memo. Exh.P.N. After the post-mortem examination, the I.O. Took into possession the last worn clothes of Murtaza alias Ghunni deceased vide memo. Exh.P.H. He also took into possession the last worn clothes of Iftikhar alias Younus vide memo. Exh.P.J. On 2-6-1989, he arrested the appellant. On 4-6-1989, the appellant got recovered blood-stained Chhuri. P.5, which was taken into possession. After completing the legal formalities, the I.O. Submitted the challan in the Court.
6. Dr. Iqbal Ahmad Javaid (P.W.1) conducted post-mortem examination on the dead body of Murtaza alias Ghunni on 28-5-1989 at 8-00 a.m. And found an incised wound 1" x 1/2" on the front of left side of chest in the lower portion, 3-1/4" below the left nipple, and another incised wound 1/2" x 1/4" muscle deep, on the front of left side of the chest, 6" below the meial end of left clavical bone.
The cause of death was due to sudden shock and haemorrhage on account of above-mentioned first injury, which was sufficient to cause death in the ordinary course of nature. Both the injuries were ante-mortem caused by sharp-edged weapon. The deceased died a few minutes after the receipt of injury No,1.
' Doctor Munir Ahmad Naz (P.W.2) conducted post-mortem examination on the dead body of Iftikhar alias Younus on 28-5-1989 at 10-30 a.m. He found (1) an incised wound 3 c.m. x 1 c.m. On the outer part of middle of right arm perforating the muscles and terminating at an incised wound, 2 c.m. x 3/4 c.m. On the back of same arm, 4 c.m. Away, 13 c.m. Above the elbow in almost horizontal plane, (2) an abrasion, 5 c.m. x 3 c.m. On the front of right arm, 4 c.m. Above injury No,1, and (3) an incised wound, 2-1/2 x 3/4 c.m. On the outer side of right side of the chest, 15 c.m. From mid line, 9- 1/2 c.m. Below and on the outer part from the right nipple. The doctor opined that cause of death was due to shock and haemorrhage as a result of injury No,3 which was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about eight hours.
7. The appellant when examined denied the prosecution allegations, and professed innocence. He explained the case against him in the following words:-- "My sister Naseem Bibi was married with Zulfiqar P.W. But she died. Zulfiqar P.W. Demanded the hand of Mst. Bushra Bibi, my other sister, for himself, but I asked my father not to give her hand to Zulfiqar P.W. Because he was a Malang. Consequently my father gave the hand of Bushra Bibi to Iftikhar alias Younis deceased. Zulfiqar P.W. Bore grudge against me on that account and he has got me falsely implicated in this case due to that grudge."
' No evidence was produced in defence by the appellant nor did he choose to appear as his own witness as required under section 340(2), Cr.P.C.
8. Placing reliance upon the prosecution evidence, the learned trial Judge convicted the appellant and awarded him the sentence mentioned above.
9. The learned defence counsel contended that there is no evidence whatsoever on the file to connect the appellant with the crime. The eyewitnesses have not supported the prosecution version before the Court. Muhammad Bashir (P.W.8), Zulfiqar (P.W.10) and Mustafa (P.W.11), the alleged eye-witnesses were declared hostile, whereas Mst. Inayat Bibi (P.W.12) while appearing before the Court deposed that Ghaffar appellant alongwith his three companions, Jabbar, Akbar and Pappu, committed the crime, which knocks out the prosecution version from the bottom and her evidence is not worthy of any credence.
' In the end, learned counsel urged that the learned trial Judge recorded the conviction, without there being any legal evidence on the record. It appears that the learned trial Judge passed the impugned judgment on the principle of moral conviction, without adhering to the principle of legal conviction, that is, he based his findings on the material which is not evidence as contemplated by the provisions of Qanun-e-Shahadat.
10. The learned State counsel supported the impugned judgment on the same grounds, which prevailed with the learned trial Judge, while passing the judgment of conviction against the appellant.
11. We have gone through the entire record carefully and have also examined critically the respective submissions of the parties.
'Admittedly, the eye-witnesses have not supported the prosecution version, as given in the F.I.R.; there are glaring and material contradictions in their statements before the trial Court and the police under section 161, Cr.P.C. In the F.I.R. Only one accused is mentioned, whereas in their statements before the Court they deposed that more than one persons committed the crime.
According to the F.I.R., the appellant was arrested at the spot on 27-5-1989, but according to the prosecution evidence, the appellant was arrested on 2-6-1989, then he led to the recovery of Chhuri P.5 on 4-6-1989. In view of these material contradictions, mentioned above, it would not be safe to place implicit reliance on the ocular evidence. There can be two possibilities; either the witnesses have been won over by the defence, or they might not had witnessed the occurrence. In both these situations, the benefit of doubt goes to the defence, as prosecution is bound to prove its case beyond reasonable doubt. There is substantial force in the submission of the learned defence counsel that there is no legal evidence available on the record against the appellant, as defined in Article 2(1)(c) of Qanun-e-Shahadat. It reads:-- "(c) 'evidence' includes---
(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence."
12. Applying the above-mentioned definition of 'evidence' to the facts of this case, we find that there was no legal evidence available on the record to justify the conviction of the appellant, as none of the eyewitnesses deposed before the Court that it was the appellant who caused injuries to the deceased.
13. The Courts in Pakistan are bound by law to administer justice according to law and not according to their moral conviction, howsoever strong c that may be; hence the prosecution has failed to prove its case against the appellant. Accordingly, we accept this appeal, set aside the conviction and sentence of the appellant on two counts and acquit him. The sentence of death awarded to the appellant is not confirmed. The appellant shall be set at liberty forthwith, if not required to be detained in any other case.