MUHAMMAD YOUNAS Versus THE STATE
JAWAID NAWAZ KHAN GANDAPUR, J .--- By this judgment we propose to dispose of the present Criminal Appeal (No.35 of 1992) filed by the convict appellant Muhammad Younas as well as the Criminal Revision (No.24 of 1993) filed by the complainant. Since both these arise from the judgment of Sessions Judge (Said Maroof Khan), Haripur, dated 19-9-1992 passed in Sessions Case No.30/8 of 1991 (State v. Muhammad Younas), whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 25 years on each count and to pay Rs.20,000 by way of compensation to the heirs of the deceased and, in default thereof, to suffer further rigorous imprisonment for 6 months.
2. The complainant on the other hand, has prayed that the sentence awarded by the Sessions Judge vide; his judgment, referred to above, was not in accordance with law and, therefore, the sentence be modified and the appellant be awarded capital punishment of death on both counts under section 302, P.P.C.
3. The background of the case in hand, in blie of, is as under:--
(a) Samina minor girl of about 10 years of age and her sister Maryam Bibi minor aged about 12 years, daughters of complainant Mir Muhammad son of Hayat Gul (P.W.7), were sleeping together on bed lying in a courtyard of the house belonging to one Ali Zaman son of Qalandar of Village Dalri, Tehsil Haripur on the night of 23-6-1991. It was at about 8 p.m. that they were fired upon and as a result of which Samina (aged 10 years) died whereas Maryam Bibi aged about 12 years sustained pellet injury on the back of her neck. Later Maryam Bibi also died because of the said injury while she was being taken to the hospital. Complainant Mir Muhammad (P.W.7), the father of the deceased, lodged a report in respect of the occurrence in question at Police Post K.T.S. Haripur on the same night at about 2-15 a.m. It was alleged in his report that on the night of occurrence at about 8 p.m. he alongwith his wife Mst. Muhammad Jan (not produced) and his two sons namely Muhammad Javed (not produced) and Chanzeb (P.W.8) were sitting in the courtyard of their house situated at Village Darlri, Tehsil Haripur whereas his two daughters Samina Bibi and Maryam Bibi aged about 10 and 12 years respectively were sleeping in the same courtyard on a cot. According to him, it was appellant-accused Muhammad Younas who came there duly armed with a .12 bore shot gun and fired at his daughters. The shot fired by the appellant hit one of the girls, Samina Bibi, on her chest arid she died on the spot whereas Maryam Bibi also received an injury on her back. He further alleged that after the occurrence the appellant accused decamped from the scene of occurrence. According to him, the occurrence was not only witnessed by himself but was also witnessed by his wife Mst. Muhammad Jan (not produced) and his two sons Muhammad Javed (not produced) and Chan Zeb (P.W.8). The motive for the crime as alleged was that the appellant accused had asked for the hand of complainant's daughter Amina Bibi but his refusal to oblige him resulted in the murder of his two daughters.
(b) Sub-Inspector Khan Bahadur Khan (P.W.9) Incharge P.P. Khalabat Township entered the report of the complainant in the daily diary at serial No.11 and sent a copy (Exh.P.A./1) of the report to Police Station Haripur, where, on its basis, a case was registered vide; F.I.R. No.481, dated 24-6-1991 (Exh.PA.).
(c) The dead body of Samina Bibi was brought to the police post by the complainant who also brought injured Maryam Bibi with him. The inquest report (Exh.P.D.) and the injury sheet (EXh.P.W.l/2) was prepared by sub-?Inspector Khan Bahadur Khan (P.W.9) in respect of Samina Bibi whereas injury sheet (Exh.P.W.l/6) was prepared by the said Sub-Inspector in respect of injured Maryam Bibi. Thereafter, the sub-Inspector despatched the dead body of deceased Samina Bibi to the hospital for post-mortem examination whereas Maryam Bibi was also sent to the hospital for medical treatment. Maryam Bibi, however, died on the same day in the hospital.
(d) Sub-Inspector, Khan Bahadur Khan (P.W.9) went to the spot and prepared the site plan (Exh.P.B.), at the instance of the complainant and the eye-witnesses. During the inspection of the spot, he took into possession blood?stained earth, one empty (Exh.P.5), a Charpai and quilt (Exh.P.6) vide; recovery memo. Exh.P.W.3/1. The Sub-Inspector also took into possession the shirt of Samina Bibi, having corresponding cut marks, vide; recovery memo. Exh.P.W.5/2, a bottle (Exh.P.4) containing pellets which were recovered from the dead body of Maryam Bibi after these items were sent to him, by the Doctor who had conducted the autopsy.
(e) After, arresting the accused on 25-6-1992 the Sub-Inspector sent the clothes of the deceased, blood-stained earth and the quilt to the Expert for opinion. Statements of the P.Ws. were also recorded by him under section 161, Cr.P.C. Upon the completion of the investigation he handed over the case file to the S.H.O., Police Station, Haripur who submitted complete challan against the accused in the Court of Ilaqa Magistrate. The Magistrate sent the same to the Sessions Judge under section 190(3), Cr.P.C.
(f) The accused was summoned and the copies of the statements/documents were provided to him as required by law. The charge against hire was framed on 22-1U-1991. The appellant-accused pleaded not guilty and claimed trial. In order to prove; its case the prosecution produced the following witnesses:--
Lady Dr. Irshad Bibi, W.M.O. Civil Hospital, Haripur (P.W.1);
Chan Muhammad Constable No.377 KTS P.P., Haripur (P.W.2);
Elahi Khan son of Hayat Gul resident of Dalri, Haripur (P.W.3);
Muhammad Ilyas S.I. Kohistan (P.W.4);
Abdur Rashid No.287 I.H.C. P.S., Donga Gali (P.W.5);
Muhammad Ilyas Khan, Inspector S.H.O. P.S., Haripur (.P.W.6);
Mir Muhammad son of Hayat Gul, resident of Dalri (Complainant P.W.7);
Chan Zeb son of Mir Muhammad, resident of Dalri (P.W.8); and
Khan Bahadur, S.I. K.T.S. Haripur (P.W.9).
(g) The accused was examined under section 342, Cr.P.C. on 3-3-1992 and he denied all the allegations levelled against him by the prosecution and alleged that he was innocent and was falsely charged. He also produced, the following two witnesses in support of his defence:--
Muhammad Aslam Khan son of Gula Khan Ex-Chairman Union Council Laloogali (D.W.I);
Muhammad Siddique son of Muhammad Yaqoob, Chairman, Zakat Committee (D.W.2)
(h) After hearing the arguments of the learned counsel for the parties and going through the record of the case the Sessions Judge (Said Maroof Khan) vide his judgment, dated 19-7-1992 convicted and sentenced the accused to--
"(1) undergo 25 years' R.I. for killing Amina Bibi;
(2) undergo 25 years' R.I. for killing Maryam Bibi;
(3) pay Rs.20,000 as compensation to the legal heirs of the deceased or in default thereof to suffer further R.I. for a period of 6 months."
(i) He, however, ordered that both the sentences of imprisonment shall run concurrently and also extended benefit of section 382-B, Cr.P.C. to the appellant-accused. The shotgun Exh.P.1 was ordered to be confiscated in favour of the State and it was ordered that the case property be retained in fact till the expiry of period of limitation prescribed for appeal.
4. Dissatisfied with the verdict given by the Sessions Judge the appellant accused 'has challenged the legality of the impugned judgment, by filing the appeal in hand.
5. The complainant has also assailed the findings of the Sessions Judge and has filed the connected Revision Petition (No.24 of 1993) wherein he has alleged that the sentence awarded by the Sessions Judge is not commensurate with the offence committed by the appellant-accused and prayed that the same be enhanced and the appellant-accused be awarded death sentence for killing his two minor daughters.
6. Mr. Muhammad Akbar Khan Swati, Advocate, learned counsel for the appellant, Mr. Muhammad Aslam Khan, Assistant Advocate-General, learned counsel for the State and Malik Azmatullah, Advocate, learned counsel for the complainant present and heard. We have gone through the record of the case carefully.
7. It may be stated at the outset that in criminal cases the burden of proving its case lies on the prosecution. The prosecution is, therefore, duty bound to prove the case against the accused beyond doubt and this duty does not change or vary even in the case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with prosecution case and, in the final analysis, if defence plea is proved or accepted then prosecution case would stand shattered and discredited. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case then in that case it would be enough but in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false. Ashiq Hussain v. The State 1993 SCMk-417.
8. Similarly it was held in case Hakim Ali and 4 others v. The State reported in 19.71 SCMR 432 that in criminal trials the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence.
9. Keeping in view the dictum as laid down by the Honourable Supreme Court of Pakistan in the cases, referred to above, we would now discuss the evidence produced by the prosecution in support of its case.
10. Complainant Mir Muhammad son of Hayat Gul appeared as P.W.7 and stated that on 23-6-1991 at about 8 p.m. he alongwith his wife Mst. Muhammad Jan (not produced) and his two sons Muhammad Javed (not produced) and Chan Zeb (P.W.8) were sitting in the courtyard of their house whereas his two daughters Samina Bibi aged 10 years and Maryam Bibi aged 12 years were sleeping on a cot lying in the courtyard. He further stated that the appellant-accused Muhammad Younas arrived there duly armed with a .12 bore shot gun and fired at his daughters, that Samina Bibi was hit on her chest as a result of which she died on the spot while Maryam Bibi sustained an injury on her neck near the shoulder. According to him after committing the crime the appellant-accused decamped from the scene of occurrence. He further stated that the occurrence was witnessed by him as well as his wife and his two sons. About the motive for the commission of the offence, the complainant stated that the appellant-accused Muhammad Younas wanted the hand of his daughter Amina Bibi and, on his refusal, he got annoyed and killed both this daughters. According to him, the report (Exh.PA./1) was lodged by him which was correct and bore his signatures.
11. In cross-examination, the complainant stated that he heard the report of fire at 8 p.m. when he was sitting on a cot in his courtyard he admitted that he and his brother Elahi Khan (P.W.3) had a common courtyard. He admitted that all the inmates of his house were sitting in the courtyard, referred to above. This witness voluntarily stated that in-fact there were three houses and all tile three houses had a common courtyard. According to him, the third house was owned by Ali Zaman son of Qalandar Khan. He also admitted, as correct that there existed an intervening wall between the: courtyard of the house of Ali Zaman and the common courtyard owned by him and his brother Elahi Khan (P.W.3) but stated that the wall was "Katcha" one and its height was ;about 4 feet. He further admitted as under:--
"The two deceased had slept on a cot at a distance of about 6/7 paces from the boundary wall of my 170use inside the courtyard, of Ali Zaman. It is correct that the courtyard of the house of Ali Zaman is also bounded by a boundary wall. It is correct that tile accused after entering the courtyard of the house of Ali Zaman and after coming into the house had, fired the deceased."
12. The complainant, when further cross-examined, admitted that the site plan was prepared by the police at his pointation. He further admitted:--
"The empty .12 bore cartridge was found inside the courtyard of the house of All Zaman. It is incorrect that the empty was found from outside the courtyard."
13. In the last paragraph of his cross-examination, the complainant admitted that there was no electricity in his village and that they were using kerosine oil lantern. He submitted that Ali Zaman was not residing in his house and that the same was being used for the cattle by appellant-accused. He however, refuted the suggestion-that some person from the village had, fired and killed his daughters.
14. Chan Zeb son of Mir Muhammad-complainant was examined as P.W.8. In his examination-in-chief, he supported the contentions of his father (complainant) and stated that his two sisters, who were sleeping on a cot in the courtyard, were fired upon by appellant-accused as a result of which his sister Samina Bibi died on the spot while Maryam Bibi sustained an injury. That after the occurrence the appellant-accused decamped from the spot. However, he gave a different version about the motive for which the offence was committed. According to him, the mother of the appellant-accused Muhammad Younas wanted the hand of Amina Bibi from his father who refused to oblige her and on this the appellant-accused murdered his sisters.
15. In cross-examination this witness contradicted his father (complainant) P.W.7 and admitted asunder:--
"It is correct at the time of occurrence I, my father Mir Muhammad P.W, my mother Mst. Muhammad Jan P.W., my brother Javed and my uncle Elahi Khan were inside the same common courtyard.... I heard the fire report at 7-45 p.m. Tile accused was at bout 15 paces away, from me when fired the shot. I state with emphasis that the accused had first entered the courtyard of the house of Ali Zaman and after coming into the courtyard he fired the shot."
16. This witness refuted the suggestion that the shot was fired by the assailant from outside the wall of the house of Ali Zaman. However, he admitted and thus contradicted his father, the complainant, when he stated:--
"The empty was recovered from outside the house of Ali Zaman, at a distance of 2 feet away from the place of firing."
(b) He admitted that the appellant-accused had himself never asked for the hand of his. sister from his father, as according to this Witness, it was the mother. of the accused who had asked for the hand of his sister from his father.
17. Both these eye-witnesses have contradicted each other on the following material points:--
(a) According to Chan Zeb (P.W.8) his paternal-uncle Elahi Khan (P.W.3) was also present at the time of the occurrence whereas the complainant (P.W.7) has not mentioned the presence of his brother (P.W3) pit the time of occurrence, (2) Chan Zeb (P.W.8) stated that the empty was recovered from outside the wall of the house of Ali Zaman whereas according to complainant (P.W.7) the empty was recovered from inside the courtyard of the house belonging to Ali Zairian.
18. Elahi Khan was examined as P W.3. It is surprising that in his entire examination-in-chief he did not utter a single word about his presence at the time of occurrence in the courtyard alongwith complainant (P.W.7), his sons and his wife. Similarly he did not say a word, in his examination-in-chief, that his two real nieces were murdered by the appellant-accused in his presence.
19. However, when lie was cross-examined, he admitted that:--
"I am not an eye-witness of the occurrence. It is incorrect to suggest that the place from where the above mentioned recoveries were. made is in the courtyard of house of Ali Zaman.
At the time of fire I was present in my own courtyard I was accompanied by my wife and daughter who were present in the same Courtyard. The police had drawn tile site plan in my presence and on; their asking I` had shown them the respective places of my presence ? and the presence of my wife and daughter in the courtyard. Chan Zeb was not present with me in my courtyard. P.Ws. Mir Muhammad and Javed were in their courtyards including P.W. Chars Zeb ?. My daughter Mst. Nasreen is betrothed with Muhammad Younas accused. This engagement took place about 15 years back when Mst. Nasreen was a small child..... It is correct that since there is the wall of the height of 4 fret intervening between our courtyard and the courtyard of Ali Zaman therefore, I could not see the assailants or the victims when the fire was made in the connected courtyard of Ali Zaman .... The house of Ali Zaman is deserted as he lives in Karachi and we are using that house. Volunteered that the cattle of Younis accused are also kept in, the same house. It is correct that this house was not entrusted to us by Ali Zaman. On the contrary it was entrusted to accused Muhammad Younis and his mother Mst. Nasreen Akhtar."
20. This witness was produced by the prosecution and, therefore, the prosecution is bound by his statement. He made pertinent averments in his cross-examination, which is as under:--
"It is correct that Muhammad Younas accused had come to the spot after the occurrence and had accompanied us with the dead bodies up to village Beer at a distance of 8/10 miles from Village Dalri. From Dalri we had conic upto Beer on foot carrying the dead body of Samina and injured Mst. Maryam. From Beer we asked the accused and other persons to go back to the village as they were not needed. It is correct that till then neither Muhammad Younas accused was named nor he was apprehended."
21. The Investigating Officer, Inspector Khan Bahadur was examined as P.W.9. He gave a detailed version of what had happened and stated that he had arrested the accused on 25-6-1991 and it was on 28-G-1991 that, on the pointation of the accused, he recovered .12 bore shot gun (Exh.P.1) from the house of the accused and took the same into his possession vide; memo. Exh.P.W.5/1. He also stated that since the accused had admitted his guilt before him, therefore, he produced him before the Magistrate for getting his confessional statement recorded on 29-G-1991 but he refused to make any statement and hence he was sent to the judicial lock-up. In his cross-examination he refuted the suggestion that he had recovered the empty from a place situated inside the courtyard. He stated that he had not found any source of light near the spot when he visited the same. He stated that he took the accused into his custody when the appellant-accused was brought before him by Aslam Khan, Chairman, Union Council of the area (D.W.1) on 25-6-1991. According to him he had kept the accused in his custody for 4 days before the searched his (accused) house and recovered the crime weapon at his instance. He admitted that he had sent the gun fur analysis and admitted that a negative report (Exh.P.W.9/B-3) was received in this respect. In the last few lines of his cross-examination the Investigating Officer admitted as tinder:--
"It is correct that 1 have mentioned in both the inquest reports in Column No.1 that the occurrence took place in the courtyard of complainant Mir Muhammad."
22. There is an interesting aspect of this case inasmuch as a perusal of the cross-examination of the Investigating Officer, Sub-Inspector Khan Bahadur (P.W.9) would show that he had also prepared the injury sheet of Maryam Bibi in the first instance when she was brought to the police post in an injured, condition and was unconscious. That injury sheet in not available on the file and this fact has been admitted by the Investigating Officer. when he stated:--
"The present injury sheet present on file Exh.P.W.l/6 was prepared and the original injury sheet referred to above has not been made a part of the judicial file because the fact of her unconsciousness is not mentioned in the said injury sheet as well. It is further incorr6et that Mst. Maryam was in her all senses when she appeared in the police post and that she did make a statement before me. It is also incorrect that the said statement of Mst. Maryam somebody else was charged for the occurrence and, therefore, at the instance of the complainant who had charged the present accused the statement of Mst. Maryam has been concealed and for the same reason her original injury sheet is not placed on the judicial record. I cannot produce the original injury sheet of Mst. Maryam in Court now or even afterwards because that is not now available with me."
23. From the prosecution evidence which has been discussed above, it has become crystal clear that the occurrence had taken place at about 8 p.m. when it was dark and, therefore, even if the eye-witnesses were present near the scene of occurrence, it was not possible for them to have identified the assailants. Besides this tile conduct of the appellant-accused, immediately after the occurrence, is noteworthy. If he had committed the crime, as alleged by the complainant (P.W.7) and his son (P.W.8), then in that case he would not have stayed there and helped the complainant to remove the dead body of Samina and injured Maryam Bibi to the P.P. as has been admitted by Elahi Khan (P.W.3), the real brother of the complainant. Another factor which cannot be lost sight of is that the appellant-accused did not abscond after the occurrence and appeared before the Investigating Officer when he was handed over to him (Investigating Officer) by Muhammad Aslam, Ex-Chairman of Union Council Laloogali (D.W.1) as has been admitted by the Investigating Officer in his cross-examination.
24. As against this evidence the appellant-accused had produced two respectable persons from the locality i.e., Muhammad Aslam Khan, Ex?-Chairman, Union Council, Laloogali (D.W.1) and Muhammad Siddique, Chairman of Zakat Committee, (D.W.2). Both these witnesses have no animosity or ill-will towards the complainant or his family. On the contrary they are on good terms with them. Similarly they have no motive, whatsoever, to give false evidence on oath to save the skin of an heinous offender. Muhammad Aslam Khan (D.W.1) stated that on the night of occurrence at about "Khuftan Vela" when he was present in his house, Maulvi Muhammad ? Siddique, Chairman Zakat Committee and Chan Zeb, (P.W.8) son of Mir Muhammad (complainant) came tot Ills house and Chan Zeb (P.W.8) informed him that his sisters had been killed by somebody and that lie should therefore, visit their house. He further stated that he immediately accompanied Chan Zeb (P.W.8) and Maulvi Muhammad Siddique to the house of the complainant, that there he saw, one girl lying dead whereas the other was seriously injured. According to him, both the girls were lying on a cot in the house of one Ali Zaman son of Qalandar Khan. He stated that none of the persons from the house of Mir Muhammad complainant or those who were present in the gathering had charged anybody about the occurrence before him. He stated that on his arrival, he found Muhammad Younas accusers present in the gathering. According to him, the dead body was, thereafter despatched in his presence. According to him many persons from the village accompanied the cot, including the accused. According to him, accused Younas was present in the gathering when he was arrested by the police.
25. This witness was thoroughly cross-examined but nothing could be brought on record to shatter his veracity or to prove that this witness has ill-will or motive to give false evidence against the complainant. Thus, no reason exists to discard his evidence.
26. Maulvi Muhammad Siddique was examined as D.W.2. He stated on oath that' on the night of occurrence he was present in his house alongwith Zareen, Abdul Jalil, Shaukat Khalib of village mosque and Muhammad Sadiq, when at about one hour after the evening, prayer, he heard the report of a fire, that after about 3 minutes of the said report of fire Chan Zeb (P.W.8) son of Mir Muhammad complainant came to his house and inquired from them about the fire, that Chan Zeb was still there when in tile meantime a small girl Asia (niece of D.W.2) came running there .and informed them that somebody had killed Samina and Maryam. He further stated that, on hearing this, all of them got up and went to the house of Mir Muhammad complainant lying on a cot in the courtyard of the house of Ali Zaman. He categorically stated that, on inquiry, the complainant told him (flat he did not know as to who had fired on his daughters. This witness further stated that the complainant then asked him to go to the house of Muhammad Aslam, Chairman (D.W.I) alongwith Chan Zeb (P.W.8) to inform him about the occurrence and to request him to come to the spot as he was respectable person. He further stated as under:--
"We then went to Muhammad Aslam's house. Before Muhammad Aslam, Chan Zeb P.W. disclosed that somebody had killed his sisters one of whom is dead while the other is seriously injured. Muhammad Aslam then accompanied us to the house of Mir Muhammad.
27. The witness further stated that after reaching the house of the complainant arrangements were made to despatch the dead body of Samina and Maryam injured on cots which were lifted by the villagers, including the appellant-accused Muhammad Younas and Zarin. Fie also supported D.W.1 by stating that the police arrested Younas appellant-accused on the next day from the gathering. This witness was also thoroughly cross-examined but nothing adverse could he brought on record which could show that this witness was not a truthful witness or that he had any enmity or ill-will towards the complainant His evidence too cannot be brushed aside.
28. The appellant-accused when examined under section 342, Cr.P.C. denied all the allegations as contained in the prosecution evidence and claimed innocence and stated that he was falsely involved in the present case. When he was asked as to what was his statement and why was he charged, he replied as under;--
"I am an orphan. In my childhood I was engaged by my mother with one Mst. Nasreen daughter of Elahi Khan P.W. Elahi Khan is the brother of complainant Mir Muhammad. Since Mst. Nasreen is the sole heir of Elahi Khan who is likely to inherit the entire property his father Mir Muhammad has been trying to get my engagement with Nasreen dissolved and instead take the hand of Nasreen, for his son Chan Zeb. P.W.-Mir Muhammad and Elahi Khan P.Ws. has enmity in the village and have also remained locked in criminal litigation with their enemies. On the night of occurrence somebody killed the deceased in the house of Ali Zaman. The occurrence when unidentified as it was deserted house. On hearing, I alongwith other persons of the village immediately rustled to the house of Ali Zaman and Mir Muhammad etc. On inquiry told the persons on the spot that this occurrence was probably committed by one Khalid and his father Ghulam Hussain with whom they have recurring enmity
When the dead bodies were lifted Mir Muhammad complainant asked me to help him carry the Cots of the deceased there was journey to be covered on foot. I accordingly carried the cots alongwith Mir Muhammad upto village Beer from where the cots were placed in a vehicle and taken to Haripur. At Beer which is about 7/8 miles from. Village Dalri, I was sent hick by Mir Muhammad saying that I should go and attend the guests who would be coming to his house for mourning. Chan Zeb P.W., however, went to Haripur alongwith his father. None of them ever charged me for the offence nor they expressed even a slight suspicion before anybody till the time they left village Beer for Haripur.
At Haripur before lodging the F.I.R. they took about three hours for consultation as is evident from the delay caused in the report. Consequently, in order to get rid of me and take the hand of Mst. Nasreen alongwith her property they hatched a conspiracy to falsely charge me in the case.
It is evident from the site plan that the occurrence did not take place in the house of Mir Muhammad as alleged in the F.I.R. as well as in the testimony of P.Ws. On the contrary the deceased were probably killed in the house of Ali Zaman from where the blood was recovered. The complainant and the P.Ws. have deliberately attempted to change the venue of occurrence by showing the same to have been committed inside the house of Mir Muhammad in order that they should conveniently supply the witnesses of their own choice in which they have failed miserably.
I am innocent and have been falsely charged for the above reasons
29. We have carefully gone through the record of the case and have heard the learned counsel for the parties in detail and are of the considered view that the evidence produced by the prosecution is contradictory in nature and essential features and as such does not inspire confidence. On the other hand the defence evidence has given fatal stroke to the story unfolded by complainant and his son in discrepant manner during the trial. We, therefore, prefer to give credence to the defence evidence and feel free to hold that the charge laid at the door of the appellant is the result of subsequent manipulation of the complainant and his associates. Further, the position taken by the appellant-accused is quite plausible and his conduct is quite inconsistent with his guilt. In the circumstances we hold that the prosecution has miserably failed to prove its case against the appellant-accused. We, therefore, accept this appeal and set aside the conviction and sentence as recorded by the Sessions Judge vide; his judgment, dated 19-7-1992. The appellant-accused shall be released forthwith provided he is not required in any other case.
30. Since the appeal filed by the appellant-accused has been accepted and he has been acquitted, therefore, the revision petition filed by the complainant has become infructuous and is accordingly dismissed.
N.H.Q./1753/Pesh,
??????????? Appeal accepted,