MUHAMMAD ARIF Versus State

IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal No.384 of 2005 filed by Muhammad Arif appellant against his conviction, who has been found guilty under section 302(b)/149, P.P.C. read with section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death on four counts with compensation of Rs.1,00,000 payable to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default of payment thereof to undergo S.I. for six months. The appellant was also convicted under section 7(c) of A.T.A., 1997 for causing injuries on the person of Imtiaz Constable (P.W.13) and sentenced to seven years' R.I. with a fine of Rs.10,000 or in default of payment thereof to undergo S.I. for six months. The fine if recovered would be paid to said Imtiaz Ahmad Constable (P.W.13). He was also convicted under section 7(b) of A.T.A., 1997 read with sections 324/149, P.P.C. on the charge of firing on the police party to cause death and endanger their lives and sentenced to five years' R.I. with a fine of Rs.10,000 or in default of payment thereof to undergo S.I. for six months. He was also convicted under sections 353/149, P.P.C. and sentenced to undergo R.I. for two years with a fine of Rs.2,000 or in default of payment thereof to further undergo S.I. for two months. The appellant was also convicted under section 148, P.P.C. and sentenced to two years' R.I. with a fine of Rs.2,000 or in default of payment thereof to further undergo S.I. for two months. The appellant was also convicted under section 13 of the Arms Ordinance, 1965 for possessing unlicensed .30 bore pistol with 32 live bullets and sentenced to three years' R.I. with a fine of Rs.5,000 or in default of payment thereof to undergo S.I. for two months. However, all the sentences of imprisonment were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to the appellant. The above said convictions and sentences were recorded through judgment, dated 28-9-2005 passed by the learned Judge, Anti-Terrorism Court-I, Gujranwala. Murder Reference No.27-T of 2005 has also been sent by the learned trial Court seeking confirmation of death sentence awarded to the appellant. Since both these matters have arisen out of the same judgment and common questions of facts and law are involved, we intend to dispose of it simultaneously through this single judgment.

3.(sic) The brief facts of the prosecution case are that the appellant Muhammad Arif had been sent up by the police of Police Station Eminabad District Gujranwala to face the trial on the allegation that on 9-2-2005 at about 6-00 a.m. he along with his co-accused Riasat Ali, Liaqat Ali (real brothers of Muhammad Arif appellant) and Imran alias Mani (these co-accused met death during the occurrence) with five other unknown co-accused armed with deadly weapons, formed an unlawful assembly in the area of Aadhu Rai Road, More Eimanabad Gujranwala (which is at a distance of about 7 kilometers in the West of Police Station Eimanabad) and in furtherance of common object of aforesaid assembly committed four murders (Qatl-e-Amd) of Shahid Ahmad 312/C of Police Station Saddar Gujranwala, Khalid Ahmad 2685/C, Ansar Iqbal 650/C and Abaid Ali, A.S.-I., Police Station City Kamoke and launched murderous assault and caused injuries on the person of Imtiaz Ahmad constable (P.W.13) of Elite Force and C.W. Nazir Ahmad passerby and found in possession of unlicensed ammunition.

4. The instant occurrence was reported to the police by complainant Shahbaz Ahmad Hinjara (P.W.16) Inspector/S.H.O. of Police Station City Kamoke by making his statement (Exh.P.A.) culminating into F.I.R. (Exh.P.A./1). As per version of the complainant on 9-2-2005 at about 6-00 a.m. he along with Ubaid Ali A.S.-I. (deceased of this case), Liaqat Ali Shah A.S.-I. Tehseen Babar constable, Karamat Ali constable and Sikandar Baig constable (all the three armed with SMG rifles), Muhammad Aslam, Pervaiz Ahmad, Shahid Ali constables armed with G-3 rifles and Fayyaz Ahmad, Muhammad Akbar armed with semi-automatic rifles reached Ghala Mandi, More Eminabad in response to a wireless message. There Mudassar and his co-accused had come armed with fire-arms for commission of dacoity. Aayaz Ahmad and other persons who were performing volunteer guard duty (Thikkary Pehara) intercepted totem (Mudassar and others) upon which they made aimed firing on the persons performing guard duty resulting in the death of Ayaz Ahmad and sustaining of injuries by Rehmat Ali and Ismail. The accused persons/assailants succeeded to escape. However, Mudassar son of Muhammad Munir with fire-arm was captured by the police present there. On receipt of wireless message, S.H.O. of Police Station Saddar Kamoke, Police Station Wahndo, Police Saddar Gujranwala with other police staff: and official vehicles of Elite Force also reached there. D.S.P./S.D.P.O. Kamoke was already present there on the information of the occurrence. Different teams were [brined by the D.S.P./S.D.P.O. for hot pursuit of the accused persons. The complaining with his subordinate staff, S.H.O. Saddar Gujranwala and two teams of Elite Force proceeded towards Aadhu Rai Road near Mandi Sheikhan to capture the accused persons. The accused persons on seeing the police party there started aimed and heavy firing on the police party from their rented house, resulting in the spontaneous death of Shahid Ahmad constable of Police Station Saddar Gujranwala, Khalil Ahmad constable, Muhammad Ansar constable, members of Elite Force Gujranwala, Abaid Ali, A.S.-I. of Police Station City Kamoke, P.W.13 Imtiaz Ahmad constable of Elite Force and C. W.1 Nazir Ahmad also sustained fire-arm injuries at the hands of the accused persons. On the report of police encounter Syed Walayat Hussain D.S.P./S.D.P.O. Kamoke also rushed to the place of occurrence. The police party in the right of self-defence made firing upon accused persons as a result of which two accused persons namely Riasat Ali and Imran alias Mani met the death. The aforesaid two accused persons were armed with fire-arm. One of the accused entered into the house of Mistary Muhammad Munir and continued firing on the police party beseeching himself behind the walls and windows of the house. Police party in exercise of right of self-defence also made firing. As a short circuit of electricity, the curtains and goods lying in the room caught fire and the whole house was gutted. Due to pulling down of the roof and fire one accused Liaqat Ali died at the spot.

5. Nearby the dead bodies of Riasat Ali and Imran alias Mani, one Klashnikov with 52 live bullets and one pump action gun with 60 live cartridges were recovered. One klashnikov, with burnt butt and 150 live bullets were recovered nearby dead body of Liaqat Ali. The other five unknown accused persons succeeded to escape from the scene of occurrence while resorting to firing on the police party. One of them Muhammad Arif appellant with automatic mouser .30 bore and 32 bullets was overpowered by the police employees. The other four accused persons succeeded to escape. All the accused persons were involved in heinous cases and proclaimed offenders of Police Station Saddar Shakargarh. The accused persons by resorting to firing on the police party, commission of murder of three persons (fourth died afterwards) and causing of injuries to two police employees and one passerby had committed the act of terrorism and sought to be proceeded therefor. Muhammad Arif appellant with recovered ammunition was produced before P.W.17 Khalid Mahmood Afzal Inspector/S.H.O. Police Station Eimanabad at the spot. On 14-2-2005, Abaid Ali, A.S.-I. injured succumbed to The injuries.

6. Khalid Mahmood Afzal Inspector/S.H.O. (P.W.17) on 9-2-2005 at about 10-00/10-30 a.m. received information regarding the instant occurrence, who proceeded to the scene of occurrence along with his subordinate staff. At the place of occurrence, complainant of this case Shahbaz Ahmad Hinjara Inspector/S.H.O. Police Station City Kamoke was present whose statement (Exh.P.A.) was recorded, the same was read over to him and he signed it admitting its correctness. He also produced before P.W.17 one klashnikov P.67, 52 live bullets P.68/1-52, 50 crime-empties of klashnikov P.69/1-50 and he secured the same by preparing recovery memo. Exh.P.SS. and a sealed parcel. He also produced before him one pump action .12 bore P.64, with 60 live cartridges P.65/1-60, 20 crime-empties of cartridges P.66/1-20 and secured the same vide recovery memo. Exh.P.UU. and prepared a separate sealed parcel. Complainant also produced before the Investigating Officer Muhammad Arif appellant with recovered weapon of offence, .30 bore automatic pistol P.61, 32 live bullets P.62/1-32, 20 crime-empties of .30 bore pistol P.63/1-20 and secured these articles vide recovery memo. Exh.P.RR. and by preparing a sealed parcel. He arrested Muhammad Arif appellant. The complainant also produced before him one burnt klashnikov P.70 with 150 live bullets P.71/1-50 and secured the same vide recovery memo. Exh.P.TT. Separate sealed parcels were also prepared of these recovered articles. At the same time, Sami Ullah, S.-I., Incharge Elite Force, Gujranwala produced before him various articles P.30 to P.60 which he had secured from the house of Muhammad Arif appellant. He secured these articles under section 550, Cr.P.C. vide recovery memo. Exh.P.QQ. He also secured blood of all the deceased of this case through cotton swabs, by preparing separate scaled parcels and recovery memos. Exh.P.LL. of Imran alias Mani, Exh.P.MM. of Liaqat Ali, Exh.P.NN. of Khalil Ahmad constable Exh.P.OO. of Muhammad Ansar Exh.P.PP. of Shahid Ahmad constable. All the above recovery memos were attested by Muhammad Riaz S.-I. and Falak Sher, A.S.-I.

7. Thereafter he prepared injury statement of one Nazir Ahmad Exh.P.K., of Imtiaz Ahmad constable Exh.P.M., of Abaid Ali, A..S.-I. Exh.P.C. and dispatched them for medical cover to the Tehsil Head Quarter Hospital Kamoke. Then he inspected the dead bodies of the deceased, prepared application for post-mortem examination of Muhammad Shahid constable Exh.P.Q., his inquest report Exh.P.R., injury statement Exh.P.S. He also prepared application for post-mortem examination Exh.P.U., inquest report Exh.P.V. and injury statement Exh.P.W. of Muhammad Ansar constable. Thereafter he prepared application for post-mortem examination Exh.P.Z., inquest report Exh.P.AA. injury statement Exh.P.BB. of Khalil Ahmad constable. He also prepared application for post-mortem examination Exh.P.HH., inquest report Exh.P.VV., injury statement Exh.P.WW. of Imran alias Mani accused. He also prepared injury statement of Riasat Ali deceased Exh.P.KK., his application for post-mortem examination Exh.P.XX., his inquest report Exh.P.YY.

8. He dispatched the dead bodies of the deceased to the mortuary of D.H.Q. Hospital Gujranwala, through Javed Iqbal, Muhammad constables and Samuel A.S.-I. He prepared rough sketch of place of occurrence Exh.P.ZZ. (of the house, out of which firing was made in street) and Exh.P.AAA. of the house of Muhammad Munir whose house also caught fire during the occurrence. Thereafter, he visited the police station and handed over all the case property to the Moharrar for safe custody and dispatch to the concerned quarter. At the spot, he also recorded the statements of marginal witnesses of the above recovery memos. Muhammad Riaz S.-I. and Falak Sher, A.S.-I. He also examined the eye-witnesses of the occurrence at the spot. Post-mortem examination of the deceased was conducted on the same day i.e. 10-2-2005. Naseem Iqbal constable of Elite Force Gujranwala produced before him, last-worn blood-stained clothes of Ansar Iqbal P.1 to P.10 and he secured the same vide recovery memo. Exh.P.B. Naseeni Iqbal constable also produced before him last-worn blood-stained clothes of Khalil Ahmad constable P.11 to P.15 and he secured the same vide recovery memo. Exh.P.C. Samuel Saleem, A.S.-I. produced before him last-worn blood-stained clothes of Shahid Mahmood constable P.16 to P.23 and secured the same vide recovery memo. Exh.P.D. Javed Iqbal constable produced before him last-worn blood-stained clothes of Imran alias Mani P.24 to P.26 and he secured the same including sealed phial said to contain metallic piece vide recovery memo. Exh.P.E. Javed Iqbal constable produced before him last-worn blood-stained clothes of Riasat Ali P.27 and P.28 and he secured the same vide recovery memo. Exh.P.F. All these recovery memos. were attested by Manzoor Ahmad and Ihsan Ullah constables of Police Station Eminabad and he also recorded their statements and delivered the recovered articles to the Moharrar of the police station.

9. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court then copies of the documents required under section 265-C, Cr.P.C. were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried. The prosecution in order to prove its case produced as many as 17 witnesses. The ocular account was furnished by Shahbaz Ahmad Hinjara Inspector/S.H.O. (P.W.16), Muhammad Riaz S.-I. (P.W.15), Sami Ullah Khan, S.-I. (P.W.14) and Imtiaz Ahmad constable (P.W.13) while the medical evidence had been produced through the statement of Dr. Captain (R) Muhammad Munir Hussain (P.W.6), Dr. Ghulam Shabbir Tahir (P. W .7) and Dr. Nisar Ahmad (P.W.8) while the investigation had been conducted by Khalid Mahmood Afzal Inspector/S.H.O. (P.W.17). The remaining witnesses are of formal nature and need not to discuss here.

10. After the close of the prosecution evidence the statement of the appellant .was recorded under section 342, Cr.P.C. in which he denied the allegations and professed his innocence. However, to a question that "why this case against you'?" he made the following reply which is reproduced as under:--

"I had never visited at More Eminabad as my brothers were residing separately. It is unfortunate fact that I am of solitary male member left in my family. There is no collateral relation. It is unfortunate fact that police due to vengeance against my brothers have falsely implicated me in this case and have planted fake recovery upon me, in which there is no public witness. I have been falsely involved in this case being only related person left in my family and in order to show efficiency of the police, I have been made scapegoat." ??????

And further to a question that "why the P.Ws. have deposed against you?" The appellant has made the following reply which is also reproduced as under:--

"All the P.Ws. are police officials, who being inimical towards myself have deposed falsely against me. No person from public has been cited as witness, only police employees have deposed against me due to vengeance being brother of the 'deceased accused. I have no scratch on my body, nor any blood-stained clothes have been secured by the police."

The appellant had opted to make the statement under section 340(2), Cr.P.C. on oath and denied the allegations. However, Nazir Ahmad had appeared as C.W. in support of the case.

11. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through the instant appeal.

12. Learned counsel for the appellant contends that thee eye-witnesses had not seen the appellant while firing along with the co-accused at the police party during police encounter and it is not a case of direct evidence. It is also contended that the police officials who had allegedly apprehended the appellant at the spot were not produced and even the names of the police officials who had overpowered the appellant and recovered the weapon from him were not disclosed by the complainant and the Investigating Officer; that the appellant was arrested only being real brother of Liaqat and Imran alleged dacoits two of whom also were murdered by the police during the same incident; that the two women-folk were also arrested from the same house and this fact was not disclosed by the complainant in the F I. R. and by the other witnesses; that the recovery was useless as all the weapons of empties were sent to the office of forensic Science Laboratory at the same time and that in. fact it was a case of no evidence and the appellant had been made scapegoat, who may be acquitted.

13. Learned Special Prosecutor has opposed this appeal on the ground that serious incident had taken place in which four police officials had been murdered and Imtiaz Ahmad constable (P. W. 13) also received fire-arm injuries, who has supported the prosecution case while the other two police officials namely Sami Ullah Khan, S.-I. (P.W.14) and Shahbaz Ahmad Hinjara Inspector/S.H.O. (P.W.-16) have also supported the ocular account and the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt. It is also contended that the appellant was apprehended at the spot red-handed and recovery of weapon was effected from his possession and the empties which were recovered at the spot had matched with the weapon recovered from the appellant at the spot hence the appeal may be dismissed and the death sentence may be confirmed.

14. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution.

15. According to the prosecution case, which has been set up on the statement of Shahbaz Ahmad Hinjara Inspector/S.H.O. (P. W.16) of Police Station Kamoke he along with other police officials who were armed with rifles etc. received an information about the incident of dacoity which had taken place at Ghala Mandi More Eminabad wherein private persons had intercepted the dacoits namely Mudassar etc. who made firing whereby Ayaz Ahmad was killed while Rehmat Ali and Ismail sustained injuries. Mudassar had been apprehended at the spot by the people. It has been claimed by the complainant that wireless message was relayed from the wireless control and all the S.H.Os. of District Gujranwala and Elite Force vehicles arrived at the spot. Then two teams were constituted to chase the accused. He was the head of the team deputed to visit the place of present incident which had taken place near Mandi Sheikhan in an Abadi situated at Aaudhu Rai Road and on seeing the police party according to the complainant the accused started firing with their weapons and Shahid Ahmad, Khalil Ahmad and Muhammad Ansar constables died at the spot while Abaid Ali, A.S.-I. and Imtiaz Ahmad constable, Elite Force and azir. Ahmad private person were injured during the incident and further police force also arrived at the place of incident. However, due to the firing in self-defence made by the police two dacoits also died at the spot in the police encounter and third had died in the house of Muhammad Munir which was burnt and dead body of the third dacoit was found there. The names of the dacoits were disclosed as Riasat Ali, Imran alias Mani and Liaqat Ali. The weapons of offence were also found near their dead bodies and Arif appellant was allegedly apprehended by the police at the spot along with .30 bore automatic pistol and 32 live cartridges while four unknown persons had succeeded in running away from the spot. The said accused were involved in 19 criminal cases of murders and dacoitics at Police Station Shakargarh.

16. In order to prove the ocular account the prosecution had produced three witnesses. The complainant Shahbaz Ahmad Hinjara Inspector/S.H.O. has appeared as P.W.16, who supported his complaint (Exh.P.A.) allegedly made before Khalid Mahmood Afzal Inspector/S.H.O. (P.W.17). To prove the ocular account apart from the complainant, Imtiaz Ahmad constable who had received fire-arm injury during the incident was produced as P.W.13 and Sami Ullah Khan, S.-I. member of the police party appeared as P.W.14. All the three eye-witnesses admittedly had not seen any of the accused when they were firing and they had not stated specifically that the appellant had been firing at the police party at the time of incident. The weapon of offence which he was allegedly carrying with him at the time of the incident was also not mentioned by them in their statements. The only statement of the eye-witnesses is that the accused started firing from inside the house and three police constables and two injured police constables received the injuries when they were in the street. So it has been established on the record that nobody had witnessed the appellant while firing in the incident at the police party and only evidence against the appellant is that he was apprehended at the spot while in possession of pistol .30 bore automatic along with 32 live cartridges. To prove the apprehension of the appellant at the spot though the three eye-witnesses have stated 'so yet they had not mentioned the names of the police officials who had actually apprehended the appellant after overpowering him after the incident. P.W.16 Shahbaz Ahmad Hinjara during cross-examination stated that some of his subordinates had apprehended him and then produced Arif before him. He had not mentioned the place from where he was apprehended and the names of the police officials who had apprehended were also not disclosed by him. Similarly the other two eye-witnesses who allegedly were present at the spot also did not disclose about the presence of the appellant at the spot with any role. They only stated that the appellant had been arrested at the spot. During the cross-examination it is established that none of the alleged three eye-witnesses produced by the prosecution had apprehended the appellant at the spot. Even the place from where the appellant had been apprehended has not been mentioned in the site plan (Exh.P.H.). As such the evidence of the three witnesses alone was not sufficient to prove the charges against the appellant.

17. The other piece of evidence against the appellant is that at the time of his arrest, he was in possession of .32 bore automatic pistol along with 32 live cartridges. To prove the said recovery the prosecution has produced complainant (P.W.16) Shahbaz Ahmad Hinjara Inspector/S.H.O. He admittedly had not apprehended the appellant, who was only produced before him having already been overpowered. So the recovery had not been effected from the appellant at the time of his arrest by P.W.16. Muhammad Riaz S.-I. (P.W.15), the other witness of the recovery memo. Exh.P.RR. regarding the recovery of weapon and bullets from the appellant only stated that Shahbaz Ahmad Hinjara Inspector/S.H.O. (P.W.16) had produced the appellant along with .30 bore pistol and 32 live bullets and 20 crime-empties of .30 bore pistol before the Investigating Officer. P.W.15 has also not given the direct evidence that he had seen the appellant while fleeing from the spot along with the alleged pistol and he had also not stated that from where the 20 crime-empties of .30 bore pistol were recovered. In such circumstances, it can safely be held that the prosecution had not produced sufficient evidence regarding arrest of the appellant from the spot immediately after the occurrence and the recovery of weapon from him was also not proved.

18. The prosecution case itself appears to be bundle of lies and the prosecution has miserably failed to prove the case against the appellant beyond any shadow of doubt. According to the prosecution version the dacoits started firing on the police party from inside the house which had been taken on rent by Muhammad Arif appellant along with his other brothers Imran and Liaqat who died in the police encounter. The owner of the said house or any other private person from the said locality was not joined in the investigation or produced at the trial and though the witnesses during the cross-examination admitted that the public persons were present at the spot at the time of incident. Even otherwise the site plan (Exh.P.H.) has falsified the story of the complainant as according to Exh.P.H. Liaqat and Imran alleged dacoits who also died during the police encounter had fired at the police party from point "E" which was in the street and not in the house as claimed by the eye-witnesses. Similarly dead body of Liaqat was shown lying at point "F" and dead body of Imran at point "G", which points were in the street and if the accused had been firing at the police party from inside the house, how the dead bodies of both the dacoits were found in the street where the dead bodies of the police officials were also lying. Their dead bodies were not found in the house which had been allegedly taken on rent by the deceased/dacoits or by the appellant Muhammad Arif. So the incident appears to have not taken place in the manner narrated by the prosecution witnesses and certain facts have been suppressed by the eye-witnesses. Even otherwise Imtiaz Ahmad constable (P. W.13) during the cross-examination explained that two women of the family of Arif appellant were also arrested from the spot but P.W. 14 Sami Ullah Khan, S.-I. stated that he did not know if any female member was arrested from the spot while Muhammad Riaz S.-I. (P. W.15) during cross-examination admitted that he had arrested two women namely Azra and Yasmeen wife of and sister of Liaqat deceased but explained that they were arrested in some other case. So we can safely hold that the true facts have been concealed by the prosecution witnesses. Even otherwise the story narrated by Imtiaz Ahmad constable (P. W.13) that Mudassar had been arrested was based on hearsay evidence. Similarly Sami Ullah Khan, S.-I. (P.W.14) had also made the major portion of his statement on the hearsay evidence and the story of setting at fire the house of Muhammad Munir where the dead body of third dacoit was found was not supported by P.W.13 Imtiaz Ahmad. The witnesses had not made consistent statements with each other and cannot be termed as truthful witnesses. Moreover, the recovery of weapon from the appellant could not be proved through the statements of the witnesses, who had caused the arrest of the appellant from the spot. They were not only produced as witnesses but their names were even not disclosed by the witnesses who had allegedly produced him before Shahbaz Ahmad Hinjara (P.W.16). The recovery memo. also does not find mention the signatures of Shahbaz Ahmad Hinjara Inspector S.H.O. P.W.16 who had allegedly produced the appellant along with the weapon before the Investigating Officer.

19. The report of the Forensic Science Laboratory cannot be used against the appellant as the said weapon and the; empties allegedly recovered from the spot along with other weapons which were used by the accused who died during the incident were sent to the office of F.S.L. on the same day and the said report is useless and cannot be taken into consideration as a corroborative piece of evidence. Even otherwise according to the prosecution version four other accused had also run away from the spot but their names were even not brought on the record during the police investigation or trial and it shows that the police had not spoken the whole truth. ????????

20. In view of the above discussion we have no hesitation in holding that the prosecution's case was doubtful and the prosecution even otherwise had not been able to prove the case against the appellant for his active participation along with the co-accused in the incident who had fired at the police party. Mere heinousness of the crime was not sufficient to record conviction against the appellant. The benefit of even a slightest doubt has to go to the accused. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. This rule is antithesis of haphazard approach for reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) "the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing innocent". On the other hand in the present case no direct evidence had been produced by the prosecution regarding the actual participation of the appellant in the occurrence. Merely because of doubtful evidence regarding arrest of the appellant from the spot after the occurrence he cannot be liable for the offence.

21. Resultantly Criminal Appeal No.384 of 2005 filed by Muhammad Arif appellant is accepted, the impugned judgment of convictions and sentences is set aside and the appellant is acquitted of the charges by extending him the benefit of doubt, who shall be set at liberty forthwith if not required in any other criminal case.

22. Murder Reference No.27-T of 2005 is replied in the negative and the death sentence is NOT confirmed .

S.M.B./M-409/L ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.