RAJA AFRASIAB KHAN, J.---On 17th of May, 1988 at 12-30 p.m., a case under section 302/34, P.P.C.
Was registered on the statement of Muhammad Yousaf with Police Station Bhara Khou, District Islamabad against Muhammad Ilyas, Muhammad Akram, Mir Kabal and Aitabar Khan for the murder of Muhammad. Hussain and Mumraiz Khan. At 8-30 a.m., on the day of incident, Muhammad Yousaf was present in his shop when Master Muhammad Hussain asked him to go to Muhammad Amin at his residence to condole the death of some one in his family. Together, they went for offering the condolences. At about 9-30 a.m., after visiting the bereaved family, they returned to their shop. Two nephews of Muhammad Yousaf, and Mumraiz Khan alias Maija were present in the shop because they used to work with him. Arshad Hussain was sitting in his shop while Lal Hussain was also present at the spot. Muhammad Hussain, in the meantime, came and stood outside the shop of complainant. The accused, Muhammad Ilyas, Mir Kabal, Muhammad Akram and Muhammad Aitabar Khan reached the shot while armed with .12 bore carbines. They abused Master Muhammad Hussain and declared that they would get their revenge by killing him because he had been helping their enemies in the murder litigation between them. Muhammad Ilyas and Muhammad Aitabar Khan fired which injured the abdomen and temple of Master Muhammad Hussain. He fell down. On their part, Muhammad Akram and Mir Kabal fired and injured Mumraiz Khan on his forehead. He also fell down. They continued firing indiscriminately. The accused, on alarm, ran away with their weapons. Master Muhammad Hussain died instantaneously. Mumraiz Khan was brought, in critical condition, to General Hospital, Rawalpindi in a Suzuki Pick-up where he died shortly thereafter. Motive was that in January, 1988, Muhammad Nawaz, a real brother of Muhammad Ilyas accused was murdered. Muhammad Ayub and Muhammad Miskeen (the accused) were found innocent by the, Police. The accused believed that it was Master Muhammad Hussain who had won over the Police for declaring the accused innocent. In support of its case, prosecution produced Muhammad Siddique P.W.1, Muhammad Yaqoob P.W.2, Razi. Akbar P.W.3, Sajjad Hussain P.W.4, Raja Fida Hussain P.W.5, Subedar Muhammad Hanif P.W.6, Rehmat Din P.W.7, Haji Muhammad Yousaf P.W.8, Arshad Hussain P.W.9, Nazar Hussain P.W.10, Abdul Qayyum P.W.11, Muhammad Akram P.W.12, Dr. Hamid-ud-Din P.W.13, Constable Muhammad Siddique P.W.14 and Hakim Khan P.W.15. Eye-witness account was furnished by Muhammad Yousaf, Arshad Hussain and Abdul Qayyum. The accused denied the allegations against them in their statements under section 342, Cr.P.C. And pleaded their innocence. They, however, did not lead evidence in support of their plea. On 6-12-1989, a learned Additional Sessions Judge, Islamabad convicted the accused under section 302/34, P.P.C. On to counts. Muhammad Ilyas and Mir Kabal were sentenced to death whereas Muhammad Aitabar Khan and Akram were sentenced to imprisonment for life and fine of Rs.10,000 each or in default to undergo R.I. For one year each. They were ordered to pay Rs.10,000 each to the legal heirs of both the deceased failing which they would suffer six months' R.I. Benefit of section 382-B, Cr.P.C. Was given to them. The convicts went in appeal against their conviction and sentence. Learned Judge also referred the case to the High Court for confirmation of death sentence of Muhammad Ilyas and Mir Kabal. On 7- 2-1993, a Division Bench of the Lahore High Court confirmed the death sentence of Muhammad Ilyas and acquitted Muhammad Aitabar Khan, Muhammad Akram and Mir Kabal by giving them benefit of doubt vide the same judgment. Leave to appeal was granted to Muhammad Ilyas with the following reasons:-- "There are three eye-witnesses in this case, namely, Arshad Hussain, Abdul Qayyum and Muhammad Yousaf (complainant). The High Court excluded the testimony of first to witnesses from consideration and lended weight to the defence plea that they were not present at the spot at the the of the occurrence; thus leaving only Muhammad Yousaf P.W. On the scene, on whose deposition reliance has been placed by the High Court.
It is contended that according to Muhammad Yousaf's own showing, held jailed on the charge of perjury and thus was not a competent witness in contemplation of Article 3 of the Qanun-e- Shahadat, and, therefore, reliance could not have been placed on his testimony. This point needs examination. Leave to appeal is, therefore, granted.
2. It is submitted that there is no reliable evidence to connect Muhammad Ilyas with the commission of crime inasmuch as the evidence which was not believed while acquitting the three accused was, in fact, used, to convict the appellant. No justification could be made out for such conviction on the same discarded evidence. According to him, motive was rightly ignored because it was not proved. Learned counsel contends that Police did not investigate the case honestly. He argues that recovery of weapon of offence, in this background, could not be safely relied upon.
Learned State Counsel has supported the judgment under challenge.
3. After hearing the learned counsel for the parties and going through the record, we hold that there was no evidence which could justify the Courts below to convict the appellant. Muhammad Yousaf, Arshad Hussain and Abdul Qayyum, allegedly, supported the prosecution. Arshad Hussain and Abdul Qayyum were not believed to be present and as such, their testimony was rightly rejected. Muhammad Yousaf remained in the field but he was, admittedly, convicted and sentenced, by a Court of law on the ground that he made a statement before it which was subsequently proved to be false. He was, nevertheless, relied upon as his evidence was corroborated by recovery. On the face of record, it appeared unsafe to convict the appellant on the sole testimony of such a convicted person. We have become cautious in the peculiar circumstances of this case and cannot rely upon Muhammad Yousaf as he would not tell the truth even on oath. The recovery of weapon at his instance shall also not be acceptable because of his shady character. Testimony of Hakim Khan, Investigating Officer had also made the presence of Muhammad Yousaf at the spot doubtful. He admitted that he did not mention the names of eye- witnesses or the accused in the inquest reports in his statement:-- "It is correct that in any of these inquest reports,- there is neither the mention of the name of any accused nor of any witness. Even in column No.4 of both the inquest reports, I have not named any eye-witness."
4. It would surely lend support to the defence view that Muhammad Yousaf had falsely deposed before the Court. Possibility that weapon of offence was planted upon the appellant with the connivance of the complainant, in the above circumstances, could not be ruled out. It is well- settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt.
5. The appeal of Muhammad Ilyas is, accordingly, accepted by setting aside his conviction and sentence. He shall be released forthwith provided, of course, he is not needed in some other criminal case.