' FAZAL-UR-REHMAN, J.---The appellant Muhammad Ibrahim son of Ghulam Qadir was convicted by Sessions Judge, Khuzdar for offence under section 302(a), Pakistan Penal Code for Qatl-i-Amd of Ghaus Bakhsh having been committed on 30-11-1998 in Khatichak Nall, Levies Thana Nall and was sentenced to death as Qisas by judgment, dated 12-6.1999. The convict submitted Criminal Jail Appeal No,47 of 1999. Matter has been referred by the learned trial Court vide Murder Reference No,6 of 1999 for confirmation of sentence of death imposed on the convict. Both the Criminal Jail Appeal and Murder Reference have been taken together and will be disposed of by one and the same judgment.
2. The occurrence is stated to have taken place on 30-11-1998 in Mauza Khatichak Nall. The prosecution's case as it emerges from the report, testimony of the prosecution witnesses and record is that on 1-12-1998 after receipt of telephonic information P.W. 6 Mehboob .Ali, who was posted as Naib-Tehsildar. Nall went to Khatichak Nall along with P.W. 3 Dr. Fazal Muhammad who was then posted as Medical Officer, B.H.U. Garok Nall and levies personnel. Deceased's . Uncle P.W.
Muhammad Hashim who is stated to be present there made report Exh.P/4-A. The report was to the extent that his nephew Ghaus Bakhsh son of Rehmat was murdered a day before and the culprit decamped from the area. He also reported to have searched for the culprit and came to know through people that the deceased was seen along with Muhammad Ibrahim who had .303 bore Rifle with him and disappeared since then. He accordingly requested for legal action against the accused. It is stated that this report was recorded at about 10-00 p.m. P.W. Mchboob Ali, NA Tehsildar who took the investigation in hand also inspected the dead body which was lying in the house of one Sher Muhammad (not examined) and found two bullet injuries on the person of deceased Ghaus Bakhsh. P.W.3 Dr. Fazal Muhammad Baloch., who was accompanying the Naib Tehsildar, Nall had examined the dead body of Ghaus Bakhsh vide Exh.P/3-A. No internal post- mortem examination was conducted as per request of Muhammad Hashim vide Exh.P/4-B. The dead body was handed over to Muhammad Hashim vide receipt Exh. P/2-B. The Investigating Officer stayed there during night and inspected the place of occurrence on the next morning and prepared site plan. The record is silent as to on whose pointation the site plan was prepared as the dead body had already been removed from the place of occurrence as the same was lying in the house of one Sher Muhammad when the Investigating Officer reached Khatichak Nall. The blood- stained earth and shirt were taken into possession vide Exh.P/2-C. It is stated that one empty of the .303 Rifle was also secured from the place of occurrence and taken into possession vide' Exh.P/6-B.
The Investigating Officer then recorded statements of witnesses under section 161, Cr.P.C. It is stated that accused Muhammad Ibrahim was arrested on 13-12-1998 from Khatichak Nall by levies personnels and produced to the Investigating Officer. It is also stated that one Rifle .303 along with two live cartridges was recovered from the accused at the time of his arrest by the levies. The rifle and cartridges are stated to have been produced to the Investigating Officer by the levies personnel and taken into possession vide Recovery Memo. Exh.P/6-C. The names of marginal witnesses of Exh.P/6-C neither find place in the list of witnesses given in the challan Exh.P/6-D nor examined in this case under section 302, P.P.C. During trial. It is also stated that accused was produced before P.W.5 Ghulam Azeem Judicial Magistrate, Khuzdar on 16-12-1998, who recorded confessional statement of accused under section 164, Cr.P.C. It is an admitted position that neither any parcel had been prepared in respect of the recoveries which are stated to have been made during the investigation nor the articles had been sent to the Laboratory and Fire-arm Expert in order to ascertain as to whether the articles were stained with a human blood and the empty had been fired from the rifle allegedly recovered from the accused or otherwise. After usual investigation the accused was sent up to face his trial before the learned Sessions Judge, Khuzdar.
3. On 29-1-1999 charge under section 302, P.P.C. Was framed against the accused by the trial Court to which he pleaded not guilty. It is pertinent to note that the charge had been read over to the accused is to the extent that on or about 1-12-1998 at Khatichak Nall he along with another person in furtherance of their common intention committed the murder of Ghaus Bakhsh son of Rehmat by means of firing with Rifle .303 bore. It may further be pointed out that the order sheet maintained by the trial Court for the said date clearly indicates that neither public prosecutor was present nor the defence counsel as the counsel for the pauper accused was appointed by the trial Court on 23-2-1999 and appointment letter of defence counsel was issued on 24-2-1999 by the trial Court vide No, 233/Judl./Pauper/DSJK/99. It is not understood as to why the learned trial Court did not bother to comply with the provisions contained under Chapter XXII-A of the Cr.P.C.
Particularly when the accused was facing trial under section 302, P.P.C. The prosecution in support of its case examined as many as six witnesses. Motive for the crime was stated to be involvement of the deceased in murder case of Ghulam Qadir, father of the appellant which had taken place prior to birth of the appellant.
4. In his statement recorded under section 342, Cr.P.C. The accused has disputed the case of the prosecution and pleaded his innocence. He denied the allegations.. According to him the recovery of rifle has not been effected from him nor the same belongs to him. Regarding statement under section 164, Cr.P.C. He has stated that he was subjected to torture and his thumb-impression was obtained on a paper and he did not make any confessional statement. Regarding motive he has stated that since the matter regarding murder of his father had been settled earlier therefore, there remained no enmity or grudge against the deceased nor there was any allegation of murder against deceased Ghaus Bakhsh. When asked as to why the prosecution witnesses had deposed against him to which he stated that the witnesses being closely related to the deceased had deposed falsely against him and falsely implicated with the commission of alleged offence. He did not want to give his statement on oath nor led any evidence in his defence.
5. The learned Sessions Judge, Khuzdar relying on the confessional statement of the appellant, recovery of the rifle, medical evidence and the motive given in the retracted confessional statement found the accused/appellant guilty of the offence and on conviction sentenced him to death as Qisas. He was ordered to be hanged by neck till he is dead.
6. We have heard learned counsel for the parties and examined the record.
7. It was contended by the learned counsel appearing for the appellant that in the absence of any direct and circumstantial evidence lending support to material particulars given in the retracted confessional statement, conviction could not have been based on the accepted principle of administering criminal justice. The voluntary and truthful nature of the confessional statement was also doubted and similarly the recovery of the rifle as the weapon of offence. The failure of the prosecution to investigate into the motive for commission of the offence was also stated to have highly prejudiced the prosecution case specially the appellant has no motive of his own to commit the murder of Ghaus Bakhsh as there was no allegation against the deceased and moreover, the matter had earlier been settled between the parties. The confessional statement was also stated to be unnatural and almost the same statement of the appellant was made before the Tehsildar.
Learned counsel for the State argued that the case against the appellant stood proved and that he was rightly convicted. It was submitted that the prosecution case stood fully established by the evidence of motive, medical evidence and the evidence of the recoveries.
8. After hearing the learned counsel for the parties and examining the record we are of the considered view that the trial Court had no lawful authority to convict the appellant under section 302(a), P.P.C. And to impose penalty of death as Qisas on him for two-fold reasons. Firstly, the punishment of death as Qisas is provided under section 302(a), P.P.C. For conviction and sentence under section 302(a), P.P.C. The quality of evidence is laid down in section 304, P.P.C. And it has obviously nexus with Article 17 of the Qanun-e-Shahadat Order, 1984. For awarding sentence of death as Qisas under clause (a) of section 302, P.P.C. It was necessary that the requirements of section 304(1), P.P.C. Should have been complied with but neither the appellant/accused in this case had made any confession of the commission of the offence of murder before the trial Court nor the provisions of Article 17 of Qanun-eShahadat Order, 1984 were complied with. The retracted confessional statement recorded under section 164, Cr.P.C. By Magistrate cannot be treated a confession made before the competent trial Court as per provisions contained under section 304(1)(a), P.P.C. Secondly, the appellant has claimed in the memo. Of appeal to be minor and even the Investigating Officer/Naib Tehsildar while recording his statement under section 161, Cr.P.C. Has indicated his age as about 17 years (reference page 69 of the paper book). The definition of adult is provided under section 299(a), P.P.C. Which means a person who has attained, being a male, the age of 18 years and according to section 306, P.P.C. Qatl-i-Amd is not liable to Qisas when an offender is minor therefore, he could neither be convicted under clause (a) of section 302, P.P.C. Nor he could be awarded sent rice of death as Qisas and the trial Court has acted in grois violation of law. The order of the Court is also violative of section 299(k) read with section 314, P.P.C. The observations made by the Hon'ble Supreme Court of Pakistan in authority reported in PLD 1994 Supreme Court page 885 are noteworthy. The relevant portions from the cited authority are reproduced below for the sake of facility:--
(i) "The Courts derive authority to punish the accused from the statute. If the statute does not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same as such, the conviction and sentence of the petitioner recorded under section 302, P.P.C.
Is cot ram non judice."
' It was also observed:--
(ii) "Before parting with the judgment, we would like to observe that the question of convicting the accused under appropriate section of the Code/law and awarding him legal sentence requires utmost care on the part of the Courts. Unfortunately requisite care has not been exercised in this case. It is the duty of a Court to administer justice within the four corners of the Code according to the canons of law regardless of the lack of proper assistance by the learned counsel for the parties."
' The Hon'ble Court further observed:- "The error committed by the Courts in convicting the accused/petitioner under section 302, P.P.C.
And sentencing him to death, is so serious that had the petitioner eventually been hanged to death, we are afraid it would have amounted to murder through judicial process. Needless to say that plea of good faith/bona fide/ignorance of law/incompetency is/are not available in such-like cases. In Islam our Holy Prophet Muhammad (peace be upon him) has the following views/remarks as quoted from well-known Ahadis of the Holy Prophet:- {{ARABIC TEXT}} ' By making these remarks and quoting Ahadis of the Holy Prophet Muhammad (p.b.u.h) we intend to strike a note of warning for all the Courts in the country to exercise utmost care and caution while dealing with the life and liberty of citizens because slight carelessness on their part may deprive an accused person/citizen of, his life and may cause irreparable hardship and damage to his family."
9. As stated earlier the prosecution in support Of its case examined as many as 6 witnesses. The ' brief narration of the depositions of the prosecution witnesses is as under:- ' P. W.1, Gul Muhammad: ' He is the brother of deceased Ghaus Bukhsh. According to him he was informed by a shephered namely Afzal, who saw the dead body lying in the area where he was grazing his sheep. He has further stated that accused Ibrahim had disclosed to his own uncle Usman about killing of Ghaus Bukhsh by him. This witness also stated that accused had disclosed to Usman that he had offered prayer with Ghaus Bukhsh and thereafter when Ghaus Bukhsh was cutting the branches of tree he made two fires upon him. It was also stated that father of accused had been murdered 30 years back and there was allegation of involvement of his brother Sher Muhammad which matter was resolved by making blood money. According to him, he went to the place of occurrence, informed Tehsildar and received the dead body. In his statement this witness has stated that on the date of occurrence Ghumshad alias Ghumshoo was also with accused Ibrahim. This witness suspected that said Ghumshad and Wall Muhammad were also involved with the accused Muhammad Ibrahim in murder of Ghaus Bukhsh, while the footprints were told to be that of Ibrahim. He stated that in fact the murder of his brother Ghaus Bukhsh had been committed by Ghumshad alias Ghumshoo with Wali Muhammad and accused Muhammad Ibrahim alias Abo has been implicated with the commission of this offence on account of old enmity. He has stated to have made his statement to Tehsildar. In cross-examination this witness. In clear terms, has stated that accused Muhammad Ibrahim alias Abo is not involved in the murder of his brother Ghaus Bakhsh and is falsely being implicated with the commission of this offence at the instance of Ghumshad and Wali Muhammad. The evidence of this witness who is the brother of the deceased makes the prosecution case highly doubtful and suggests that the confessional statement is neither voluntary nor corroborated. He has absolutely exonerated the accused from the commission of offence. It appears that the accused has been made scapegoat.
10. P.W.2, Fatah Muhammad: ' According to him, he was present in the house of Gul Muhammad where a boy Afzal came over there and informed that Ghaus Bukhsh had been killed. He has deposed that he accompanied Gul Muhammad and other persons of the village to the place of occurrence. According to him, Tehsildar came at the spot, took the dead body into possession vide Exh.P/2-A and handed over the same to the heirs of deceased vide Exh.P/2-B. He has stated that the blood-stained earth, blood-stained shirt handkerchief and Shalwar were taken into possession vide Exh.P/2-C, which he has identified as Article P/1 to P/4. In cross-examination he has stated that Tehsildar came /at the spot at the time of "Mar" to him, he put his thumb-impression on the paper. This witness in a very clear terms has stated that no recovery of empty or live round was effected in his presence. He has also stated that neither he put any mark of identification nor a parcel was prepared in respect of these articles. It is very surprising that this witness has been cited as marginal witness of recovery memo. In respect of one empty stated to had been secured from the place of occurrence vide Exh.P/6-B, but he has not supported such recovery which makes, the recovery of the empty from the place of occurrence highly doubtful. Even otherwise no parcel has been prepared in respect of empty nor the same has been sent to the Firearm Expert in order to ascertain as to whether the same had been fired from the rifle allegedly recovered from the accused at the time of his arrest, therefore, the same has got no evidentiary value as to connect the accused with the commission of offence. Similarly, no parcel has been prepared in respect of bloodstained earth and shirt nor the same have been sent to the laboratory for analysis in order to ascertain as to whether they were stained with human blood or otherwise. It is stated that the rifle was recovered by the levies personnel from the accused in the absence of Investigating Officer and no seizure memo. Was prepared. It is also pertinent to note that neither those levies personnel's have been examined in this case under section 302, P.P.C. Nor their names find place in the list of witnesses contained in the challan. The alleged recovered rifle has also not been sent to the Fire-arm Expert in order to ascertain as to whether it was in a working condition and the empty which stated to have been 0 recovered from the place of occurrence had been fired from the said rifle or otherwise. The recovery of rifle which is otherwise doubtful in nature and without compliance of the mandatory provisions of law and non-sending of the same along with the empty to the Fire-arm Expert cannot link the accused with the commission of offence.
11. P.W.3, Dr. Fazal Muhammad: ' He had examined deceased Ghaus gukhsh on 1-12-1998 in the house of one Maulvi situated at Khatichak where he had gone along with Naib-Tehsildar Nall. On examination he found the following:--- "General Examination of dead body: Average dead body in structure, cold wearing black clothes, which are wet with blood. Shirt was tired on left side of chest anteriorly near the pocket.
' A black colour naloon handkerchief (large size). Rigor mortis was present all over the dead body.
INJURIES CHEST WOUND OF ENT:
(1) Is present on Rt. Upper boarder of scapula which is of 1-1/2" in diameter.
(2) Another is present on RT. Side of thoracic vertebrea which is of about 1" in diameter.
' WOUND OF EXIT: ' Is present on left side of chest near the nipple which is of 3-4 inches in diameter, margins are irregular.
' Other one exit wound is not seen may be both are exit at one place.
' X-ra' machine was not in order, so X-ray film cannot be taken.
' Nature of weapon:- Fire-arm. Probable time of death:-- 23-26 hours.
' Cause of death: ' Multiple organ is failure due to massive haemorrhage, cardiac, failure and brain death."
According to doctor no internal postmortem examination was conducted for want of medical instruments in the mortuary. In cross-examination he has stated that they reached the place where the dead body was lying at 7-30 p.m. And he had not visited the place of occurrence. He has admitted that he has not mentioned about wounds in to certificate to have been the result of bullet. According to him the certificate was issued on 3-12-98 when he was contacted by the staff of Naib-Tehsildar concerned.
12. P.W.4, Muhammad Hashim: ' He is the complainant and paternal uncle of the deceased. According to him he is resident of Gharrok, whereas the occurrence took place at Katichak. According to him, on 1-12-1998 he came to know that his nephew Ghaus Bakhsh son of Rehmat had been killed and accordingly he came to Ghorrak and asked Abdul Qadir for giving telephonic information to Tehsildar. According to him, on the way while going towards the place of occurrence he was told by some tractorwala that Ghaus Bukhsh had been working in his land where Muhammad Ibrahim came over there, who had a rifle .303. According to this witness he was told that after finishing of work both Ghaus Bukhsh and Muhammad Ibrahim went altogether. According to him, the footprints of Ghaus Bukhsh and Muhammad Ibrahim led to the place of occurrence and wherefrom the footprints of Muhammad Ibrahim to his house. He has deposed that he made report Exh.P/4-A, made request for the purpose of handing over of dead body vide Exh.P/4-B and received the dead body vide Exh.P/2-B. In cross-examination this witness has voluntarily stated that the father of accused Muhammad Ibrahim had been murdered by Sher Muhammad about 10/15 years back and which case was settled between the parties. He has also admitted in cross-examination that the parties had been living amicably without any show of hostility and there remained no enmity.
Some omissions and improvements over statement recorded under -.Don 161, Cr. P.C. Also brought on record. He has also admitted that he was informed by the people and had not witnessed the incident. None come forward nor there is evidence that the incident was witnessed by any person.
No evidence has been collected during investigation which can indicate that accused and deceased were seen together and going toward their houses. The evidence of the complainant is hearsay, which has got no value in the eye of law. Even the evidence of this witness has not corroborated the confessional statement as to be based for the conviction of the accused.
13. P.W.5, Ghulam Azeem: ' He was posted as Judicial Magistrate Khuzdar on 16-12-1998. According to him he had recorded the statement of Muhammad Ibrahim under section 164, Cr.P.C., which he has produced as Exh.P/5- B and certificate P/5-C. This piece of evidence has been assailed on the ground that the confession recorded is neither true, voluntary nor corroborating. The accused in his statement under section 342, Cr.P.C. Has also stated that he was subjected to torture. The appellant was a young shephered about 17 years old during the days of occurrence. In this background it will be beneficial to refer do his confessional statement and the material particulars therefrom to assess whether any corroboration required in the circumstances of the case has been made available by the prosecution at the aria]. In the statement there is, mentioned that he was alone and had avenged by killing Ghaus Bukhsh, whereas the charge: which had been framed against him by the trial Court is to the extent that he along with another person in furtherance of their common intention committed the murder of Ghaus Bukhsh son of Rehmat. Occurrence, according to.
Prosecution was outcome of previous enmity. The prosecution abandoned its stand which was manifested by P.W. Gul Muhammad, brother of the deceased and introduced altogether different version. Gul Muhammad has exonerated the appellant from the commission of offence. Even according to complainant Muhammad Hashim it was Sher Muhammad, who had murdered father of Muhammad Ibrahim which matter had been settled and the parties had been living amicably and there existed no enmity. There is mentioned in the confessional statement that after occurrence the accused had gone towards mountain, whereas according to the complainant the footprints of Muhammad Ibrahim led to his house. There is mentioned in the confessional statement that he came to his house after 7 days and narrated the story to Muhammad Hayat, whereas according to P.W. Gul Muhammad, after occurrence accused had gone to the house of his uncle Muhammad Usman where he narrated the story. It is pertinent to note down that during investigation neither Usman had been examined nor Muhammad Hayat, nor other particulars are available. According to prosecution, the accused was arrested on 13-12-1998, meaning thereby that after 13 days of the occurrence, whereas, according to accused he came to his house after 7 days and was arrested. This read with statement of Faqir Muhammad in the connected case under section 13-E of the Arms Ordinance makes even the date of arrest doubtful. It is also every surprising that the accused who was facing his trial before the Court and whose age has been indicated by Naib-Tehsildar to be 17 years was put a question to him by the , learned Sessions Judge. (being question No,10, page 58 paper book) that his father Ghulam Qadir had been murdered 30 years back prior to occurrence. The plea of the accused/appellant during the whole trial remained that murder case of his father was settled and there remained no enmity or grudge nor the allegation of murder of his father was against deceased Ghaus Bukhsh.
14. For the safe dispensation of criminal justice the superior Courts have generally refrained from basing conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement. In the instant case not only the very narration of the facts given in the alleged confession, statement are not confidence inspiring, but such corroboration is not available in the prosecution evidence. The appellant had no enmity with the deceased as the matter regarding murder of his father had already been resolved which G fact is also evident from the prosecution evidence. The prosecution has hiver failed to produce the Tractorwila or any person to prove the hearsay evidence given by P.W.4, Muhammad Hashim to the effect that accused and deceased were seen together, so much so even the name, parentage and address of the Tractorwala had not been disclosed. No evidence has been led to support the motive set up in confessional statement. This was an occurrence which was not witnessed by any one. The confessional statement Is neither voluntary nor supported by reliable corroborative piece of evidence. The claim of the prosecution about the motive cannot be accepted in view of evidence which has been brought on record and circumstances of the case as the prosecution has failed to prove the motive. Even otherwise, such retracted and delayed confessional statement which is not corroborated by other independent evidence has got no value in the eye of law. The conditions for accepting confession as admissible evidence against the person making it are more severe and strict according to Shariah, (PLD 1983 FSC 497). In the circumstances of the case this confessional statement cannot be relied upon for the reasons hereinabove given. (Reference is also made to the authorities reported in PLD 1986 Quetta 1993, PLD 1991 FSC page 93, 1994 PCr.LJ 314 and 1984 PCr.LJ. Page 2069). The authorities relied upon by the learned Law Officer and reported in Ell (QCR page 879, 1994 SCMR page 586 and PLD 1978 SC page 200 are not helpful to the prosecution keeping in view the facts of the case in hand.
15. P.W.6, Mehboob Ali: ' He is the Investigating Officer and on 1-12-1998 he was posted as NaibTehsildar Nall and conducted investigation in the manner hereinabove mentioned. In cross-examination he admits to have not put his initial` on the cuttings which have been made in the F.I.R. Regarding date and time.
He also stated that dead body had already been removed and lying in the house of Sher Muhammad before his arrival at the place of occurrence. According to him, the accused and deceased were seen together by Fateh Muhammad and Muhammad Sharif, but at the same time he admits that both of them had not stated this in their statements recorded under section 161, Cr.P.C. It is also pertinent to note that Fateh Muhammad, who did appear before the trial Court as P.W.2 has not stated that he had seen dece2,-,ed and accused together on the day 01 occurrence.
He has admitted that no seal parcel was prepared in respect of blood-stained earth, clothes and empty. He has also admitted that he was not present at the time of arrest of accused who is stated to have been arrested from Katichak by the levies personnel's. The distance between Tehsil Headquarter Nall to Gharrok has been stated to he about 38 miles and from Gharrok to Katichak about 14 miles. The accused is stated to have been arrested from Katichak by the levies personnels and no seizure memo. Had been prepared nor other particulars have been disclosed as to wherefrom he was arrested and even date of arrest is doubtful as discussed earlier. Investigating Officer, has, however, denied the suggestion regarding torture of accused. He has, however, admitted that there was no eye-witness of occurrence of this case. This Investigating Officer had adopted a novel procedure while conducting the investigation of the case and collecting the evidence. The alleged abscondence of the appellant has also not been proved on record. In any case abscondence can never remedy the defects in the prosecution case as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt as held in the authority reported in 1999 SCMR page 1220
16. The prosecution is required to prove its case as set up by it on the strength of evidence of acceptable legal standard to be produced by it. Belief of a party or of a Court is not the evidence in any criminal case. All the aspects of the prosecution case were clouded and even put together do not help in creating a reasonable picture of the incident. The conclusion drawn by the court is not based on valid evidence, but rather on mere surmises and conjectures and the judgment is perverse. The principles laid down and the observations made by the Hon'ble Supreme Court in the authority reported in 1999 SCMR page 1220 are reproduced below for the sake of facility:- "It is axiomatic and universally recognized principle of law that conviction must be founded on Unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective."
Having regard to the above-mentioned factors, relevant provisions of law, evidence and authorities, we are inclined to hold that the occurrence is un witnessed, the retracted confessional statement is neither voluntary nor supported by any reliable corroborative piece of evidence. The conviction and sentence recorded by the trial Court against the appellant is also not legal, therefore, by extending-the benefit of doubt to appellant, we allow the criminal jail appeal filed by him. Conviction and sentence awarded to the appellant is set aside and he is acquitted. Murder Reference consequently fails. He be released if not required in any other case.