1993 PLP 417 (SCMR)

SAJJAD ALI SHAH, J.‑‑‑This appeal with leave of the Court calls in question judgment dated 25‑3‑1991 of Division Bench of Lahore High Court, whereby Cr. Appeal No.936 of 1988 is dismissed with modification that death sentence awarded to appellant herein is reduced to life imprisonment while maintaining sentence of fine and compensation and in consequence Murder Reference No.213 of 1988 for confirmation of death sentence is rejected. Cr. Revision Application No.669/88 filed by the complainant against acquittal of co‑accused by the trial Court is dismissed. Initially five persons were put on trial in the Court of Sessions Judge, Sialkot for offences under sections 302/148 and 149, P.P.C. for committing murder of Muhammad Sadiq son of Muhammad Din in furtherance of their common object while armed with deadly weapons and vide judgment dated 29‑6‑1988 in Sessions Case No.35 of 1988 Ashrq Hussain was sentenced to death and fine of Rs.30,000 or in default R.I. for two years. He was directed to. pay compensation of Rs.20,000 under section 544‑A, Cr.P.C to the heirs of deceased and in default to suffer R.I. for six months. Three co‑accused namely Ghulam Hussain and his brother Muhammad Hussain sons of Muhammad Ismail and Humayun son of Muhammad Sarwar were acquitted as benefit of doubt was extended to them while one namely; Sarwar son of Jamal Din died during trial proceedings.

2. Briefly stated the relevant facts giving rise to this appeal are that appellant and other co‑accused who were put on trial are related inter se. Ashiq Hussain is brother of Sarwar (now dead) while Ghulam Hussain and Muhammad Hussain are real brothers. Humayun is son of Sarwar. Anwar, brother of Ashiq Hussain, is father‑in‑law of Ghulam Hussain and Muhammad Hussain. Acquitted co‑accused Ghulam Hussain ran money saving device called "committee" in which members contributed some amount every month and amounts so collected from all were paid to each member on turn. Deceased Sadiq was due to get "committee" money amounting to Rs.37,500, as it was his turn but Ghulam Hussain avoided and finally refused.

3. On 21‑11‑1987 in the evening Ramzan son of deceased, riding on motor‑cycle, met Ashiq Hussain and Humayun who were also on motor‑cycle on the bridge on Sambrial Road in Daska City. Ramzan demanded as to why payment was not being made of "committee" money to his father Sadiq upon which there was exchange of harsh words. Sadiq also arrived there and intervened saying that he would have the matter settled by Punchayat and brought his son home.????

4. On the same day i.e. 21.11‑1987, incident took place at about 8 or 8‑30% p.m. as deposed by the complainant and at Shams as mentioned in F.I.R, (page 116 of H.C. paper book). It is stated that some time after altercation between Ramzan son of deceased on one side and Ashiq Hussain and Humayun on the other, incident took place in front of Haveli of deceased and at that time bulbs were alight in front of houses in the street. Five persons came in the street and in front of Haveli raising Lal who were identified as Ghulam Hussain and Sarwar armed with pistols and Ashiq with rifle, Humayun with gun and Muhammad Hussain with carbine. Sadiq approached them and at the instigation of Ghulam Hussain, Ahsiq fired from rifle at Sadiq who was hit on the knee and bent when Ashiq hit him with butt of rifle on his head felling him down. Ghulam Hussain fired from his pistol at Sadiq who was lying down. Other accused persons also fired at Sadiq and thereafter accused persons went away after boarding car which was parked at the turn of the street. Incident was seen by four witnesses namely; Muhammad Nawaz, Muhammad Riaz, Abdul Latif and Muhammad Shaft. After departure of accused persons they came near and brought injured Sadiq in a car to hospital in Daska and then on the advice of doctor carried him to Allama Iqbal Memorial Hospital at Sialkot but he succumbed to his injuries before reaching hospital.

5. On that day at 9 p.m. Sub‑Inspector Ahmad Shuja, S.H.O. P.S. City Daska, received information about the incident and shifting of injured to hospital, hence he came to Civil Hospital, Sialkot and recorded statement of complainant Muhammad Nawaz Exh.PE/1 and sent it to the Police Station for registration of formal F.I.R. He prepared inquest report Exh.P.P and injuries statement Exh.P.Q. He recorded statements of the witnesses who were present in the hospital. On 22‑11‑1987 he inspected place of occurrence and recovered blood‑stained earth, three empties of .12 bore cartridges, two empties of .32 bore cartridges, three missed cartridges of .32 bore, two broken pieces of butt of a gun and a megazine of 7 mm rifle containing five live cartridges. He made necessary parcles. During the course of investigation accused persons in the case were arrested and while in custody Ashiq produced S.B. .12 bore gun Exh.P‑11, Sarwar produced revolver Exh.P‑12 and Humayun produced D.B. gun Exh.P‑10.

6. In the trial Court prosecution examined as many as 18 witnesses in support of its case. Two eye‑witnesses have been examined namely Muhammad Nawaz complainant and Muhammad Riaz who are son and brother of deceased respectively. P.W.10 is Muhammad Ramzan son of deceased who has testified about prelude to the incident in which altercation took place between him and Ashiq Hussain and Humayun. P.W‑11 Taj Din deposed about contribution made for "committee". He stated that there were 18 members and each paid Rs.3,000 per month. Total amount was Rs.54,

000. Last draw was to go to Muhammad Sadiq deceased. Ghulam Hussain (acquitted co‑accused) gave Rs.16,500 to Sadiq and later refused to pay the balance of Rs.37,

500. On that account there was friction which ultimately resulted in the occurrence. P.W.18 is Sub‑Inspector, who investigated the case. It is not necessary to mention evidence of remaining large number of witnesses produced by the prosecution at this stage for the reason that it is of formal nature.

7. P.W.9 is Dr. Amjad Iqbal who conducted post‑mortem examination on the dead body of Muhammad Sadiq and found 11 injuries from which two were fire‑arm wounds on left thigh and right ear respectively. There was an incised wound also on the right palm and the remaining injuries were abrasions with one contusion and one lacerated wound. According to the doctor, injury No‑1, which was fire‑arm wound on the left thigh was fatal and sufficient to cause death and the remaining injuries were simple in nature.

8. Trial Court examined Dr. Sajjad Nabi as Court Witness No.1, who deposed that on 21‑11‑1987 at 9‑15 p.m. he examined Ashiq Hussain in Civil Hospital, Daska, who was found to be having four injuries on his person. Trial Court also examined D.S.P. Ghulam Muhammad as Court Witness No.2, who deposed that he also investigated the case and came to the conclusion that Ashiq Hussain did not participate in the occurrence.

9. In the trial Court in his statement under section 342, Cr.P.C. Ashiq Hussain appellant herein, denied prosecution allegations and stated that on the day of incident after evening prayers near the culvert on Sambrial Road. Daska, he met Ramzan and Sultan sons of deceased and requested them not to oppose Ghulam Hussain (acquitted co‑accused) in the election, which he was contesting upon which Ramzan gave him a beating with Sota and Sultan fired a pistol shot at him. He was removed to hospital in injured condition and was not present at the time when incident took place in which Sadiq received injuries. It is further stated by Ashiq Hussain that while he was in hospital he learnt that his brother Sarwar was subjected to murderous assault and in self‑defence caused injuries to Muhammad Sadiq with carbine. Ashiq Hussain produced photo copy of application sent by his mother to S.S.P., Sialkot for registration of counter‑case. Ashiq Hussain declined to give statement on oath. It is not necessary to go into statements of other acquitted co‑accused persons. No witness was examined in defence.

10. Trial Court evaluated evidence by placing prosecution case and defence plea of alibi of appellant in juxtaposition and concluded that recoveries were not to be believed in view of discrepancies in the evidence of P.W.12 Manzoor Ahmed and P.W.18 S.I Ahmad Shuja. For that reason positive findings of Ballistic Expert were held to be of no avail to the prosecution (see page 95 of H.C. paper book). Trial Court ignored discrepancies in the evidence of ocular witnesses and medical evidence on the ground that they did not appear to be so material as to adversely affect the prosecution case (page 96 of H.C paper book). Trial Court recorded finding of conviction against the appellant on the ground that ocular evidence was corroborated by medical evidence and that of motive with confirmatory circumstance of failure of plea of alibi which was very strongly criticised and 13 reasons were assinged in support of its falsification (see pages 91 and 100 of H.C. paper book). Trial Court vide same judgment acquitted three co‑accused on the ground that they were entitled to benefit of doubt.

11. While assessing the evidence during appeal proceedings, High Court has believed evidence of two eye‑witnesses and of recovery of weapons and crime empties with positive report of Ballistic Expert and .matching of broken pieces of butt with gun recovered from. appellant (see impugned judgment page 26 of H.C. paper ‑book). High Court has also agreed with trial Court and approved treatment given by it to the defence plea of alibi with 13 reasons assigned in declaring its failure. Dismissing appeal of appellant, High Court has reduced his sentence from death to life imprisonment on the ground that prosecution had failed to prove beyond doubt that fatal injury was caused by the appellant.

12. We have heard learned counsel for appellant and for State. We are of the view that in this case benefit of doubt can be extended to appellant as well for the following reasons.

13. Firstly, that in the same case after appraisal of evidence, trial Court acquitted three accused persons on the ground that satisfactory corroborative evidence was not available against them although they were also named by the eye‑witnesses with definite roles assigned to them. Acquitted co‑accused are Humayun son of Sarwar, Ghulam Hussain son of Ismail and Muhammad Hussain son of Ismail. Very definite role was assigned by prosecution to Ghulam Hussain in the motive as he had refused to make payment of "committee" money to the deceased. He was present at the spot and instigated. He fired a shot from his pistol at Sadiq. The other two were also present at the spot duly armed and participated in the assault as is alleged. Acquittal by the trial Court and against it non‑interference by the High Court in the revision is mainly for the reason that corroborative evidence in support of statements of eye‑witnesses is not available. The same test will apply in case of the present appellant as well.

14. Secondly, clear cut time is not given and pinpointed by the prosecution for incident. This aspect is to be examined in the context of finding whether incident could have been seen and whether there was sufficient light in which assailants could be identified and minute details of incident could be noted as alleged by the eye‑witnesses. In F.I.R. Exh.P.E (page 116 of H.C. paper book) time of incident mentioned is Sham Vela (evening time). In the narration mention is made by the complainant about prelude which preceded incident on the same day shown at evening time. It is specifically mentioned in F.I.R. that in the street in front of houses bulbs were alight. This fact that there were bulbs alight in front of houses in the street producing sufficient light to enable eye‑witnesses to see minute details of the incident as claimed by them, is not confirmed by P.W‑18 I.O. Ahmad Shuja, who inspected the spot on the following morning but did not prepare inspection memo. He could have said that there were bulbs in front of houses in the street. In such circumstances it can be presumed that either he was not informed that incident was seen in electric light or that incident took place so quickly that it was not seen by the eye‑witnesses as claimed by them. Had eye‑witnesses been present and seen the incident, then specific time of incident could have been given in F.I.R.

15. Thirdly, according to the F.I.R. four eye‑witnesses saw the incident out of whom two have been examined who are closely related to the deceased and the other two have not been examined. It is surprising that from these four eye?witnesses none rushed to the police station immediately after the incident, which was at a distance of 2‑1/2 furlongs from the spot. Positively complainant claimed in his deposition that all the four eye‑witnesses put injured Sadiq in the car and took him to hospital. Anxiety to take the injured immediately to the hospital is understandable but there is no justification for the lapse that one of four eye‑witnesses should not run up to the police station promptly for lodging the report.

16. Fourthly, in connection with not lodging F.I.R. promptly the role played by I.O. Ahmad Shuja is also not free from doubt and is shrouded in mystry. It is stated by him in the cross‑examination (page 48 of H.C paper book) that he received information about this occurrence outside the police station through someone. He did not give any particulars of that someone nor noted his name and address. He did not make entry in the daily diary. He did not confirm this news from any one and very strangely did not go to the spot which was at the distance of 2‑1/2 furlongs but went straight to Civil Hospital at Sialkot. He did not depute anybody to guard the spot. I.O. stated in his evidence that he received information at about 9 p.m. Complainant in his cross‑examination (page 24 of H.C. paper book) stated that occurrence took place at 8 or 8‑30 p.m. I.O. has admitted in his cross‑examination before the trial Court (page 48 of H.C. paper book) that Fard Biyan Ex.P.E‑1 of complainant was not in his hand and was dictated by him to Ahmed Ali, A.S.I. He admitted that in examination‑in‑chief inadvertently he stated that it was in his hand. Another startling admission made by I.O. is that when he prepared inquest report eye‑witnesses were not present in the hospital. It was for that reason that inquest report was not attested by any eye‑witness nor any one of them was deputed by him to take the dead body to mortuary for its identification at the time of post‑mortem examination. In this context deposition of P.W.9 Dr. Amjad lqbal, who conducted post‑mortem examination on the dead body mentions this fact (page 9 of H.C paper book) that dead body was identified by Malik Muhammad Nasir son of Miran Bux and Muhammad Sultan son of Muhammad Sadiq. Needless to say that neither Nasir nor Sultan is named as eye‑witness in F.I.R.

17. Fifthly, very confidently complainant stated in F.I.R. that Ashiq was armed with rifle with which he fired at Sadiq. He also hit Sadiq on the head with butt of rifle. In evidence before the Trial Court, complainant took somersault and stated that Ashiq was armed with gun. Substitution of rifle with gun by the complainant is for the reason that Dr. Amjad Iqbal after post?mortem examination gave finding that from fire‑arm injury at thigh attributed to the appellant, 27 small pellets were removed and sealed in the bottle. Substitution of rifle with gun became necessary for the complainant to make his evidence consistent with medical evidence. Rifle was mentioned in FIR, may be for the reason that police had picked up from the spot amongst other things, a megazine of rifle containing live bullets. Complainant claimed in his deposition that when his father fell down on the ground, he received incised wound on the palm of his right hand with a piece of broken glass lying on the ground. He also claimed to have said so in his earlier statement recorded under section 161, Cr.P.C. but when confronted it was found that it was not so recorded. Complainant claimed in his deposition that his father received, injury on his right buttock due to his tossing on the ground. He had stated in his police statement that his father received injury on his right buttock due to his tossing on the ground but when confronted it was found that it was not so recorded. Complainant in his cross‑examination (page 26 of H.C. paper book) admitted in unequivocal terms that he did not go to the police station for lodging the FIR and did not know if anyone from eye‑witnesses accompanying the injured to the hospital went to the police station for report as all had gone together to hospital at Sialkot. Complainant denied suggestion that he did not inform police in time because they were still cooking up story of incident. Complainant admitted that the place of occurrence was flanked by shops and they did not produce any witness from those shops‑keepers before the police during investigation.

18. Sixthly, second eye‑witness P.W.8 Muhammad Riaz is brother of deceased. His evidence is on the same lines as that of the complainant. According to him when Muhammad Sadiq went out to speak to the assailants and assailants advanced towards him they passed the gate of his house. He admitted that in the street on both sides there were shops but none from the shop‑keepers came till the occurrence was over. After the incident shop?keepers did come and appeared before the police and their statements were recorded but none of them was cited as witness. He claimed that no accused was carrying any sharp‑edged weapon. At the time of occurrence some pellets hit the door of his house. He went on seeing the incident from the door of his house which he kept ajar. He did not know from where Shari, Latif and Nawaz saw the incident. He only saw them at the spot after departure of assailants when they were removing the injured. This witness has admitted that he did not depute any person to go to the police station for loging FIR and also during their stay in hospital he did not send anybody for report. He denied having seen Ashiq in injured condition in Daska hospital. He did not give any explanation as to why he did not identify the dead body of his brother at the time of post‑mortem examination. He deposed that he did not point out anything at the spot to the police and draftsman and in hospital statements were recorded before autopsy.

19. Seventhly, ocular version is not consistent with medical evidence of the doctor and post‑mortem report which show that deceased sustained only two fire‑arm injuries, one in the thigh and the other above right ear with remaining abrasions and one lacerated wound and one contusion. Ocular version is that Ashiq fired at Sadiq at knee and hit him with butt of the gun on head. After Sadiq fell down Ghulam Hussain fired at him with pistol. Attempt was made by eye‑witnesses to explain incised wound found on the right palm of deceased by saying that when deceased fell down his hand was cut with a piece of glass lying on the ground which is simply not possible if incident took place at night and was seen in the light of bulbs particularly, when both eye‑witnesses do not claim to be present outside and very close to the spot. It is simply not possible for a witness to see from door ajar that deceased sustained cut wound on the hand with piece of glass on the ground particularly when his door was hit by pellets as claimed by him. Incidentally I.O. stated in his cross‑examination that he did not find any bullet or pellet mark on the doors of the houses near the spot. If butt of gun or rifle got broken at the spot when Ashiq hit Sadiq on his head, then injury of such magnitude and impact causing fracture of skull with corresponding damage should have been found out but as per medical report injury No.9 was lacerated wound 5 x 5 cm muscle deep on the left side of the head 10 cm from left ear and was declared by the doctor to be simple in nature because he declared only injury No.1 on thigh caused by fire‑arm to be fatal and sufficient to cause death and found all other injuries to be simple in nature. On the other hand, from the spot two pieces of butt were found, which shows that gun was broken but in what manner that still remains to be found out. Version of eye‑witnesses on this point is not convincing and reliable. It is possible that gun got broken in some other way which eye‑witnesses are unable to explain as they had not seen the incident or they are lying. This only shows that incident has not taken place in the manner as is claimed by the eye?witnesses. We do not feel inclined to rely upon these eye‑witnesses. We do not feel certain that these witnesses were really present at the spot because had it been so, such discrepancies and lapses would not have occurred as are specifically mentioned above.

20. There is no corroborative evidence in this case of satisfactory nature to warrant finding of conviction. So far evidence of recovery of weapons and crime empties from the spot and positive finding of Ballistic Expert are concerned, even trial Court did not believe that evidence for valid reasons. So far as appellant Ashiq is concerned, P.W.18 I.O. Ahmad Shuja has deposed that he arrested Ashiq Hussain on 25‑11‑1987, who produced certified copy of Medico‑Legal Report. It is mentioned specifically in F.I.R. that accused persons had taken Ashiq with self‑inflicted injuries to Civil Hospital, Daska. In such circumstances, there was no impediment in the way of I.O. to have arrested Ashiq from the hospital immediately after registration of F.I.R. I.O. has given no reason or explanation for not arresting Ashiq earlier than 25‑11‑1987 from the hospital where he was admitted. Dr. Sajjad Nabi examined as C.W.1 has testified before the trial Court that he examined Ashiq Hussain on 21‑11‑1987 at 9‑15 p.m. in Civil Hospital, Daska and found four injuries on his person of which injury No.3 was contusion with swelling 7 x 6 cm on they E, back of right hand with bones fractured and declared grevious. Injured was admitted and discharged on 25‑11‑1987. If Ashiq yeas admitted in the hospital, then formal arrest could have been shown and his interrogation could have. been made. I.O. arrested Ashiq Hussain on 25‑11‑1987 and made recovery of gun from him on 8‑12‑1987 as per memo Exh. PJ. I.O. has not explained why recovery was made after delay of about 13 days during which appellant remained in police custody. Any way recovery witness P.W.12 Manzoor Ahmad has deposed that Ashiq Hussain took police inside his Dera and gun was recovered from underneath iron chest. It is stated by this witness that Humayun and Ashiq Hussain both produced guns from underneath the same iron chest in the same room of Dera. When police party came to the Dera of Ashiq one or two persons were present there, who disappeared after seeing the police. Dera was lying open. It had only one gate. From one room both Humayun and Ashiq produced their guns lying underneath iron chest. Doors of` both rooms in the Dera were open. In such circumstances it cannot be said that gun was recovered from .exclusive possession of Ashiq. Another important noteworthy factor of this recovery is that in the recovery memo. Exh.PJ (page 122 of H.C. paper book), which is written in Urdu language, it is mentioned that one gun .12 bore No.390 with further particulars mentioned therein was recovered but there is no mention in it that its butt was broken. Recovery witness Manzoor Ahmad also did not state in his evidence that butt of the gun produced by Ashiq was broken.

21. P.W.12 Manzoor Ahmad in his deposition stated that he was not related to the deceased, who was his tribe's man. Two factors appear clearly from his evidence. Firstly, that recovery of gun was not from exclusive possession of the appellant and secondly, its butt was not broken or appeared so at the time of recovery and sealing into a parcel. Evidence of this witness is accepted by the prosecution in toto and relied upon without dispute and he is not declared hostile. P.W.6 Adalat Khan, Constable, has deposed that on 10‑12‑1987 he carried two sealed parcels, out of which one was delivered at the Laboratory of Chemical Examiner and the other was returned by Forensic Science Laboratory under an objection. He returned that parcel to ASI Muhammad Yousuf. On 13‑12‑1987, he received four sealed parcels which he delivered intact in the office of Forensic Science Laboratory, Lahore. P.W.5 Muhammad Yousuf ASI, confirmed the return of parcels under objection and explained in his deposition that on 9‑12‑1987, Ahmad Shuja Sub‑Inspector gave him three sealed parcels, one of double barrel gun, the other of single barrel .12 bore gun and third of revolver. On 13‑12‑1987 he handed over those parcels and also parcel of cartridges, which had been returned earlier under objection, to the same constable for delivery at the Laboratory. ASI has admitted in his evidence that first he sent only parcel of empties because dockets could not be obtained for sending parcels containing guns and revolver. He denied suggestion that objection raised by the Laboratory was that there was variation between seals on the parcels and those mentioned in the dockets. Report of Forensic Science Laboratory Exh.P.V. (page 14 of H.C. paper book) shows that parcels were received in the Laboratory together on 13‑12‑1987 through Constable Adalat. Apart from the facts that appellant Ashiq Hussain was not arrested earlier when he was admitted in the hospital and the parcels were dealt with in the manner stated above and also that crime empties and guns were sent together, recovery of gun from appellant after 13 days of his arrest is not free from doubt. In support of the proposition, reference can be made to the case of Abdul Rehman v. The State reported in 1983 SCMR 958.

22. The evidence of recoveries as commented upon above and matching of pieces of butt recovered from the spot with gun of Ashiq are highly suspect. Medical evidence is corroborative in other particulars but not qua accused. Similarly, evidence of motive is also not satisfactory for the reason that main grievance of the deceased was against Ghulam Hussain who refused to give balance of "committee" money and was acquitted by the trial. Court in spite of the fact that he was present at the spot at the time of incident and instigated and also fired at deceased.

23. Defence plea is that appellant Ashiq Hussain did not participate in the incident as he was admitted in the hospital with injuries at the relevant time. Defence plea is supported by C.W.1 Dr. Sabad Nabi, who claims to have examined Ashiq Hussain in Civil Hospital, Daska on the day of incident at 9‑15 p.m. On medical examination Ashiq Hussain was found having sustained four injuries including a contusion on the right hand causing fracture of bones. This witness was cross‑examined extensively on behalf of the prosecution, particularly in respect of some overwritings in the record. It was suggested to. the Doctor in the cross‑examination that acquitted co‑accused Ghulam Hussain Councillor was a friend of his father, who was practising privately in city Daska, which wag denied by him. Another witness who has supported defence plea is D.S.P. Ghulam Muhammad who was examined in the trial Court as Court Witness. He deposed that he was given investigation of this case and found out and concluded that Ashiq Hussain did not participate in the occurrence as he was admitted in the hospital at that time. In that connection he had examined some witnesses also. He had also verified the progress of investigation made by Sub‑Inspector Ahmad Shuja and had studied the case diary. He had given detailed report on 11‑1‑1988 with finding that Ashiq Hussain was not present at the time of incident. Defence plea was criticised in the trial Court on the grounds that case of injuries of appellant Ashiq Hussain was a medico‑legal case as such police should have been informed and police case should have been filed. In this respect Mst. Allah Rakhi, mother of Ashiq Hussain had addressed an application to Superintendent of Police for registration of case in respect of case for injuries to his son and this application is dated 25‑11‑1987, when incident took place on 21‑11‑1987. While considering defence plea, one other factor, which is relevant, is that I.O. Ahmad Shuja has admitted in his cross‑examination before the trial Court that it was correct that investigation of the case from him was trasferred on the complaint by accused party. He also denied suggestions in the cross‑examination that he planted gun Exh. P.11 on Ashiq Hussain and manipulated the empties and that he investigated the case under the influence of the complainant party. This defence plea even if not proved is sufficient to cast doubt in the credibility of the prosecution case, which has already become doubtful for the facts and reasons mentioned above.

24. It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same. Of course, defence pica is 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. It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues 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. In support of the proposition, reference can be made to the case of Ali Sher v. State reported in 1 PLD 1980 SC

317. In the impugned judgment against the above proposition, reliance is placed on the case of Khalid Javid v. State 1984 P Cr. LJ 100 which is distinguishable as facts in that case are different. We are of the view that in the instant case prosecution has failed in its initial duty to prove the case against the appellant beyond doubt and if defence has failed to substantiate the plea of alibi, it does not improve the case of prosecution.

25. For facts and reasons stated above, we are of the considered opinion that this is a fit case in which benefit of doubt can be extended to the appellant. We, therefore, set aside his conviction and sentence and allow his appeal. He may be set at liberty if not wanted in any other case. N.H.Q./A‑975/S????????????????????????????????????????????????????????????????????????????????? Appeal allowed.