' RUSTAM S. SIDHWA, J.---This is an appeal by Muhammad Yousuf appellant against the judgment of a learned Division Bench of the Lahore High Court dated 21-5-1990, dismissing his appeal, but accepting that of Mamshad, Falak Sher and Muhammad Iqbal, his co-convicts.
2. Muhammad Yousuf, Falak Sher, Mamshad and Muhammad Iqbal were tried by an Additional Sessions Judge of Jhang under sections 302/34, P.P.C. And 201/34, P.P.C. For the double murder of Iqbal Hussain and Sher Muhammad deceased and for making the evidence of the said murders to disappear in order to screen themselves. The learned trial Judge, by his judgment dated 29-6-1987, convicted and sentenced all the four accused under section 302/34, P.P.C. To death and to pay a fine of Rs,10,000 each or in default thereof to undergo one year's R.I. Each and under section 201/34, P.P.C. To seven years' R.I. Each with a fine of Rs,3,000 each or in default thereof to undergo further R.I.
For six months R.I. Each. Out of the fine, if recovered, half of the same was ordered to be paid to the legal heirs of each of the deceased as compensation.
3. Being aggrieved by the above convictions and sentences, Muhammad Yousuf filed a separate appeal, whilst the remaining three accused filed a joint appeal. The said appeals, together with the murder reference, were disposed of by a Division Bench of the Lahore High Court which dismissed the appeal of Muhammad Yousuf accused, but accepted that of Falak Sher, Mamshad and Muhammad Iqbal accused and set aside their convictions and sentences.
4. The prosecution case, in brief, as disclosed by first informant Muhammad Sharif P.W. 10 in F.I.R.
Exit. PD was that he had taken 30 acres of land on lease in Chah Rang Shahwala and used to cultivate it himself. On 6-10-1984 at about 11 at night, he (the first informant) with Saleh Muhammad P.W.11 was sleeping in the cattleshed, when his son Iqbal Hussain deceased and Sher Muhammad deceased were sleeping nearby. He woke up on some noise and saw in the moonlight Muhammad Yousuf accused, armed with a toka, and Falak Sher, Mamshad and Iqbal accused, all empty handed, present there. Mamshad accused was sitting on the chest of Iqbal Hussain deceased, whereas Iqbal and Falak Sher accused had caught hold of Sher Muhammad deceased.
Muhammad Yousuf accused gave repeated blows with toka on the face and neck of Iqbal Hussain and Sher Muhammad deceased. The first informant and Saleh Muhammad P.W.11 tried to come near, but were threatened with dire consequences and Sher Muhammad died. Thereafter, the assailants wrapped the two dead bodies in their beddings and set them on fire. They kept standing nearby. When the bedding got burnt completely, the accused persons ran away from the spot. The witnesses took out the dead bodies, but they were completely burnt.
5. The motive for the occurrence was that Muhammad Yousuf accused suspected illicit relations of Iqbal Hussain deceased with his sister Mst. Tasneem and for that reason they had done to death the said two persons.
6. At the trial, the prosecution produced Muhammad Sharif complainant P.W. 10 and Saleh Muhammad P.W.11 in proof of the motive and the ocular account, Dr. Muzaffar Ahmad P.W.1 in support of the medical testimony and Muhammad Sharif P.W.10, Saleh Muhammad P.W.11 and Saeed Akhtar P.W.13 in proof of the recoveries.
7. All the accused denied all the accusations that were levelled against them in their statements under section 342, Cr.P.C. And imputed their false involvement to enmity with the complainant party. Mamshad accused produced certain documents in his defence. All the accused refused to give evidence under section 340(2), Cr.P.C. In disproof of the allegations against them.
8. The learned trial Judge, relying upon the ocular account, medical evidence, the recoveries and the abscondance of the accused, convicted and sentenced them, as stated in para 2 above.
9. The Division Bench of the High Court, however, relying upon the ocular account, the medical testimony and the recovery evidence, maintained the conviction and sentence of Muhammad Yousuf accused, but acquitted the remaining three, as they were not armed and their participation appeared doubtful and also because no recoveries were effected at their instance.
10. Being aggrieved by his conviction and sentence, Muhammad Yousuf petitioned this Court for leave to appeal, which leave was granted to examine the whole evidence at length in order to determine whether the lower Courts had properly appreciated the evidence on the record and had applied proper legal principles relating to its appreciation, before recording the findings, which they did.
11. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The ocular account in this case is furnished by Muhammad Sharif complainant P.W.10, and Saleh Muhammad P.W.11. According to Muhammad Sharif P.W.10, he had put up residence at his bahak in Chah Rangwala in the area of village Thatta Muhammad Shah and that he had established residence there in order to look after the land he had taken on lease there for cultivation. According to him, meals used to be brought by his son Iqbal Hussain deceased from his village, as he maintained no utensils for cooking or other household effects at his dhari, except four beddings and four charpais. According to Saleh Muhammad P.W.11, he had come to the Dera of Muhammad Sharif P.W.10 at Chah Rangwala after sunset at about Sotewela and he had brought the meals of Muhammad Sharif P.W.10. From the cross-examination of Muhammad Sharif P.W.10 it appears that he had a house in village Suleman, three miles away from the place of occurrence, where his wife and family members were also putting up. Likewise, from the cross-examination of Saleh Muhammad P.W.11 it appears that his house was at a distance of about 25/30 miles from the place of occurrence, but that he had come to the residence of Muhammad Sharif P.W.10 in village Suleman, where he, his wife and children were staying, but that he had gone to the Dera of Muhammad Sharif P.W.10 at Chah Rangwala after sunset on 6-10-1984 at about Sotewela, where he had stayed over-night. Though the two deceased and the two witnesses had passed the fateful night at the bahak or dhari of Muhammad Sharif P.W.10 in Chah Rangwala, the police did not find any food utensils at the said place or more than two charpais, when they arrived. Shahid Hussain Constable P.W.3 is also clear that excepting cots P1 and P2 near the place of occurrence, there were no other cots. Site plan Exh. PE relating to the place of occurrence does not show any cots, but only two points where the bodies of the two deceased were found burnt. Whilst Muhammad Sharif P.W.10 stated that his meals had been brought by his son Muhammad Iqbal deceased, Saleh .Muhammad P.W.11 contradicted him by stating that he had brought the said meals. The inference therefore that except the two deceased, neither Muhammad Sharif complainant P.W.10 nor his son in law Saleh Muhammad P.W.11 were sleeping there, cannot be totally avoided. The learned Judges of the High Court also found that apart from Muhammad Yousuf appellant, none of the other accused was armed, which on the face of it appeared to be somewhat unnatural, considering that they had come all the way to the bahak of the complainant for the purpose of committing murder. Considering that the three acquitted accused had no motive to kill any of the deceased and the doctor did not notice any injury on the two deceased, which could be attributed to the acquitted accused in respect of the allegation against them that they were holding the deceased, the learned Judges of the High Court felt that it would not be safe to convict them. Considering that the evidence of the two eye-witnesses was disbelieved qua three acquitted accused, we do not find strong grounds to distinguish the case of the appellant, in view of the special features stated above. Taking into consideration the evidence on the record, the surrounding circumstances and the inferences that can fairly be drawn there from, we do not feel certain that the two eye-witnesses were present on the night of occurrence and did see the occurrence. In these cricumstances, we have no hesitation in holding that the benefit of doubt is also available to Muhammad Yousuf appellant.
12. For the foregoing reasons, we accept this appeal, set aside the judgment of the learned Division Bench of the Lahore High Court dated 21-5-1990 and acquit Muhammad Yousuf appellant of the charges against him. He shall be set at liberty forthwith, unless required in any other case. Fine, if any recovered from him, shall be refunded to him