2017 PLP 1531 (YLR)

SHAHID HAMEED DAR, J.

This Criminal Appeal No.1160 of 2010 and Criminal Revision No.490 of 2010 arise from judgment dated 9.4.2010, whereby learned Additional Sessions Judge, Gojra (Toba Tek Singh) convicted Muhammad Tariq (appellant) under section 302(b) P.P.C. and sentenced him to imprisonment for life with the direction to pay a sum of Rs.2,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was extended to him. His co-accused Akbar Ali was, however, acquitted of the charge on extension of benefit of doubt. It all happened on culmination of their trial in case-FIR No.433/09, dated 19.7.2009, under section 302/34, P.P.C., registered at Police Station City Gojra (Toba Tek Singh).

2. The prosecution case as alleged by Syed Zaheer Hussain Shah (complainant/ P.W.9) in FIR (Exh.PE/1) is that he along with his brother Tauheed Abbas PW (not produced) and wife Mst. Farzana Kausar (deceased) moved towards the house of his paternal aunt (phuphi), situated in Mohollah Tariqabad (Gojra), while riding a motorcycle bearing registration No.JG-1958, at about 10.00 p.m. on 18.7.2009; when they were a little short of the ground of Islamia High School, there they came across his phuphizad Imtiaz (P.W.10); the streetlight was on, where he stopped his motorcycle and asked Imtiaz about his mother's health; suddenly four motorcyclists, Muhammad Tariq (appellant) and Akbar Ali (since acquitted) joined by two unknown companions, all armed with pistols .30-bore, riding two motorcycles, reached there and opened straight firing on them; the first shot made by Tariq (appellant) landed at left side of head of his wife and second fire shot made by Akbar Ali (since acquitted) hit her left hand; the third fire shot, which was made by one of the unknown accused, struck in between her neck and left shoulder due to which she fell on the ground in injured condition; he, his brother Tauheed Abbas and Imtiaz ran and saved themselves; he claimed that the unknown accused could be identified by them if they would see them again; he and his companions saw the occurrence and identified the accused in the lit streetlight; many a people of the area were attracted to the spot after they heard the report of firing and noise raised by them; the accused sped away their motorcycles while raising Lalkaras, waving their weapons and extending threats of murder etc., due to which he still feared some more bloodshed at their hands. The motive behind the occurrence pertained to previous pitched enmity between the parties; he and his companions shifted Mst.Farzana Kausar injured to Civil Hospital Gojra for treatment of her injuries but keeping in view her precarious condition, she was referred to Allied Hospital Faisalabad. He remained busy in the treatment of his wife, who was still admitted in the hospital as indoor patient; his injured wife's dying declaration might be recorded as she was in critical condition. The complainant came across Muhammad Aslam SI (P.W.11) at Chowk Kacha Gojra, at 11.05 a.m. on 19.7.2009, where he presented written application (Exh.PE) before him, who despatched it to Police Station City Gojra through Muhammad Farooq 621/C for registration of case, on the basis whereof Ali Raza Nadeem ASI/Muharrar drew up formal FIR (Exh.PE/1), at 11.15 a.m., the same day. 4(sic). Dr.Faiza Kanwal WMO (P.W.1) medically examined Mst. Farzana Kausar in injured condition, at 11.04 p.m. on 18.7.2009 and observed, vide MLR (Exh.PA), the following injuries on her person:-- A-I. A firearm entry wound measuring 1 cm x 0.6 cm x DNP on outer aspect of back of left hand near base of thumb. Margins were inverted. Blood was coming out of it. A-II A firearm exit wound measuring 4 cm x 1 cm x DNP on palm of left hand on inner side near base of ring and little finger. Margins were everted. Tissues came out of wound and it bled. B-I. A firearm entry wound measuring 3 cm x 2 cm x DNP on left eyebrow. Margins were inverted. Blood came out of it. B-II A star shaped wound of exit on right side of head crossing midline, measuring 10 cm x 8 cm x DNP. Tissues and brain matter oozed from the wound. It was bleeding profusely. C. Grazing of 5 cm x 1 cm on right shoulder near base of right side of neck. All the injuries were kept under observation for X-ray etc. These were found fresh in nature and caused by firearm. The injured was referred to Allied Hospital Faisalabad for further management of his injuries. Thereafter, she (P.W.1) performed autopsy on the dead body of Mst.Farzana Kausar, at 12.45 p.m. on 28.7.2009, vide postmortem examination report (Exh.PB). She did not record description of the injuries, that she found on the dead body and instead, only referred to MLC No.827/09 (Exh.PA), having been issued by her on 18.7.2009, as to bodily injuries of the then living Mst.Farzana Kausar, which were listed as A-I & A-II, B-I & B-II and C therein. The detailed description of the injuries may be found in earlier part of the instant paragraph. On dissection: Following description was recorded by the woman medical officer in this context:-- The stitched wounds (A-I, A-II, B-I & B-II) were unstitched. Underlying bone in respect of injuries Nos.A-I and A-II was found fractured, the brain was damaged and a huge haematoma had developed at the site. The injuries on the left hand, B-I & B-II, were connected through a track, which showed no bony lesion. Injury No.5/C turned out to be skin deep. The cause of death in this case was extensive brain damage due to injuries Nos.A-I and A-II, which were ante-mortem in nature and found sufficient to cause death in ordinary course of life. Rest of the injuries, B-I, B-II & C, were also found ante-mortem but not to have subscribed to the death of the deceased-lady. The probable time that elapsed between injuries and death was about 223 hours and 56 minutes and that elapsed 'between death and postmortem examination was about five (5) hours and forty-five (45) minutes. 6(sic). Muhammad Aslam SI (P.W.11) carried out the investigation of this case. He reached the spot, inspected it, prepared visual site-plan (Exh.PM) and collected blood stained earth therefrom vide seizure memo Exh.PL; he secured blood stained clothes of the injured lady, Shalwar (P3) and shirt (P4) produced by the complainant, vide memo of recovery (Exh.PH); he moved an application (Exh.PN) to the medical officer for recording statement of the injured-lady and learnt that she was not fit for that purpose; he participated in a short-course training at Sihala from 25.7.2009 to 5.8.2009 and in the meanwhile Mst.Farzana Kausar succumbed to the injuries on 28.7.2009; on knowing this fact, the SHO appointed Mukhtar Ahmad SI (P.W.5) the next investigating officer, who proceeded to the hospital, prepared injury statement (Exh.PC), inquest report (Exh.PD) and despatched dead body to the mortuary for autopsy under the escort of Muhammad Shoaib 559/C (P.W.6); he added offence under section 302, P.P.C. by deleting section 324, P.P.C. Muhammad Aslam SI (P.W.11), the initial investigating officer returned from Sihala on 5.8.2009 and took over investigation of the case again; he got prepared site-plan in-scale (Exh.PG & Exh.PG/1) on 8.8.2009 from Muhammad Rafique draftsman (P.W.7); he deferred arrest of the accused on 3.9.2009 as he found the prosecution short of connecting evidence against them; he, however, arrested both of them on 15.10.2009 and interrogated them. He held both the accused, including the appellant, innocent during investigation and prepared a discharge report in their favour, which was not, however, acceded to by the learned area Magistrate. On completion of investigation, he submitted report under section 173, Cr.P.C. before the learned trial court by placing their names in column No.2 thereof.

7. On indictment, the appellant and his acquitted co-accused Akbar Ali pleaded not guilty and claimed a trial. To prove its case, the prosecution produced eleven witnesses, namely Dr.Faiza Kanwal WMO (P.W.1), Ali Raza ASI (P.W.2), Muhammad Khan 551/C (P.W.3), Naveed Azhar (P.W.4), Mukhtar Ahmad SI (P.W.5), Muhammad Shoaib 559/C (P.W.6), Muhammad Rafique draftsman (P.W.7), Muhammad Imran Ashraf SI (P.W.8), Syed Zaheer Hussain Shah (complainant/P.W.9), Imtiaz-ul-Hassan (P.W.10) and Muhammad Aslam SI/IO (P.W.11). Dr.Faiza Kanwal WMO (P.W.1) proved contents of the medico-legal report (Exh.PA) and postmortem examination report (Exh.PE) of the deceased. Syed Zaheer Hussain Shah (complainant/P.W.9) and Imtiaz-ul-Hassan (P.W.10) furnished the ocular account. They claimed to have seen the appellant Muhammad Tariq, joined by his co-accused firing at the deceased. The eye-witnesses also supported the motive as alleged by the prosecution. Mukhtar Ahmad SI (P.W.5) and Muhammad Aslam SI (P.W.11) are the investigating officers, who rendered details of the investigation conducted by them. Rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C., Muhammad Tariq (appellant) denied all the incriminating circumstances, put to him and in reply to question No.11 as to why this case had been registered against him, he stated as under:-- "This case has been made out against me due to previous enmity of murders with the complainant party. About 9/10 years back Sagheer alias Teddi brother of the complainant Zaheer was murdered and a case in this respect was registered against my brother Khadim Hussain and Liaqat Ali in which my brother Khadim Hussain was acquitted whereas Liaqat Ali was convicted and he is still serving the sentence. On 12.4.2009 my brother Khadim Hussain had been murdered by the complainant of this case namely Zaheer along with his brothers and a case FIR No.177/09, dated 12.4.2009 in Police Station City Gojra had been registered against Zaheer, Khalil, Naveed, Shakeel and their father Abid Hussain as accused persons and I am the complainant of said case and my nephew Akbar Ali (the co-accused) is the witness of that case and the said case is under trial in the Honourable Court of Addl. Sessions Judge, Gojra. Due to this grudge and enmity the instant case has been got registered against me and my nephew Akbar Ali (the co-accused) as a counterblast of murder of my brother Khadim Hussain." and in reply to question No.12 as to why the witnesses of prosecution had deposed against him, he asserted:-- "The witnesses are inter-se related and inimical towards me and are interested one and due to this they have deposed against me falsely." He opted not to appear under section 340(2), Cr.P.C. but he adduced documentary evidence, i.e. copies of report under section 173 Cr.P.C. (Exh.DB), that of FIR No.177/09 (Exh.DC), FIR No.111 (Exh.DD), FIR No.372/2000 (Exh.DE), FIR No.53/05 (Exh.DF), FIR No.54/05 (Exh.DG) and that of FIR No.333/04 (Exh.DH) in defence and closed his case. Learned trial court concluded trial of the accused/appellant through the impugned judgment by holding him guilty of the charge and awarded him the sentence, in mentioned terms.

9. Learned counsel for the appellant has submitted that the alleged occurrence took place in darkness of the night and no one knew as to who had murdered the ill-fated lady; the ocular account tendered by Syed Zaheer Hussain Shah (complainant/P.W.9) and Imtiaz-ul-Hassan (P.W.10) is loaded with many a contradictions and discrepancies, which reduced its creditworthiness to just about nothing; the co-accused of the appellant, namely, Akbar Ali, who allegedly fired at and injured left hand of the deceased, had been acquitted of the charge with the observation that the prosecution had failed to prove its case against him; the same treatment ought to have been extended to the appellant as his case assimilated, in all respects, with his co-accused, against whose acquittal the prosecution had not filed any appeal; the investigating officer failed to collect any crime empties from the place of occurrence nor any weapon could be recovered at the instance of the appellant and he was found innocent by the investigating officer during the course of investigation; the impugned judgment has been passed discriminately and injudiciously, which may be annulled being unsustainable.

10. On the other hand, learned Deputy Prosecutor General Punjab has opposed this appeal on the ground that appellant effectively fired into head of the deceased-lady, which factum is fully corroborated by the medical evidence, furnished by Dr.Faiza Kanwal (P.W.1); the ocular account read with consistent medical evidence makes it a perfect case of conviction against the appellant, hence, he may not be acquitted, although his co-accused had erroneously been exonerated by the trial court through the impugned judgment; lastly submitted that opinion of the investigating officer, holding the appellant innocent during investigation, cannot be proved during trial, being inadmissible in evidence.

11. Learned counsel for the parties have been heard at length and the relevant record has been minutely gone into with their active assistance. It is always the FIR in a criminal case, which sets machinery of law in motion. Being no exception, this is what exactly happened in this case, but after inordinate delay of about thirteen (13) hours, which gathers cruciality in view of the fact that it was a night time occurrence having taken place at 10.00 p.m. on 18.7.2009 at a place, which as per fourth column of the FIR (Exh.PE/1) was at a distance of just half a kilometer from Police Station City Gojra, where this FIR was required to be lodged at. The complainant, Syed Zaheer Hussain Shah (P.W.9). who claimed to be an eye-witness of the occurrence, presented written application (Exh.PE) before Muhammad Aslam SI (P. W.11) at 11.05 p.m. on 19.7.2009 at Kacha Gojra Chowk, which literally formed basis for registration of case-FIR No.433/09(Exh.PE/1). The delay in submitting written application by the complainant for registration of FIR is massive, hence, it has to be looked at inquisitively so as to find, if any explanation in this context had been offered by the complainant or not. The contents of FIR, as well as testimony of the complainant (P.W.9) would reveal that the deceased-lady Mst.Farzana Kausar was firstly taken to Government Eye-cum-General Hospital, Gojra in an injured condition at about 11.04 p.m. for treatment and management of her injuries, wherefrom she was referred to Allied Hospital, Faisalabad by the lady doctor Faiza Kanwal (P.W.1). She was received at the said hospital at 4.30 a.m. on 19.7.2009, as is manifest from the record (P5/1-24) of the said hospital, though having not lawfully been received in evidence due to non-production of medical officer/doctor concerned during trial and only brought on the record, through statement of Mukhtar Ahmad SI (P.W.5) vide seizure-memo Exh.PM. The Police Station City Gojra and Government Eye-cum-General Hospital, Gojra were situated in the same city, and Allied Hospital, where Mst.Farzana Kausar (deceased) had been referred to in injured condition was situated at Faisalabad, at a distance of about 1-1/2 to 2 hours drive from Gojra.

12. The medico-legal report (Exh.PA) of the ill-fated lady did not reveal that she was accompanied by her husband/ complainant (P.W.9) or Imtiaz-ul-Hassan (P.W.10), when taken to the hospital at Gojra, rather it showed that her father-in-law Syed Abid Hussain Shah accompanied her then, who put his signature on the MLR and received a copy thereof. Imtiaz-ul-Hassan (P.W.10) did not claim in his testimony that he too had gone to Allied Hospital Faisalabad along with the complainant when Mst.Farzana Kausar had been referred to the said hospital. The given-up eye-witness Tauheed Abbas could also not be believed to have shifted her in injured condition to Government Eye-cum-General Hospital, Gojra and then to Allied Hospital Faisalabad for want of evidence in this regard. The explanation about the delay caused, as offered by the complainant in the FIR that he remained busy in the treatment of his critically wounded wife did not look impressive at all, as Police Station City Gojra was at a few minutes drive from the place of occurrence or from Government Eye-cum-General Hospital, Gojra, hence, keeping the police uninformed about the occurrence for more than thirteen (13) hours makes a crucial circumstance, which causes eyebrow-raising. By scanning the medical record (P5/1-24), it may be assessed that the injured lady might have been retained at Government Eye-cum-General Hospital, Gojra for about a couple of hours before she was referred to Allied Hospital Faisalabad. The police could have been informed about the occurrence promptly by the complainant side, as they stayed at the said hospital of Gojra for quite some time, which was not too far from the police station concerned. Being it a police case, a phone-call by the woman medical officer to the SHO of the police station concerned, should have been enough, but she didn't do so, probably having been stopped by someone from the complainant-side in this context. It appears, that to deal with the police was not an unusual thing to do for the complainant, having history of involvement in criminal cases and thus previously dealing with them quite often. It can, safely be inferred from time taken by the complainant-side that they might have held a long session of consultation and deliberation before making it to the police for lodging the FIR. The explanation given as to the delay in lodgment of FIR., is too shallow and unimpressive to deem it plausible or worth ignoring.

13. The ocular account, as furnished by Syed Zaheer Hussain Shah (complainant/P.W.9) and Imtiaz-ul-Hassan (P.W.10) is filled with many a contradictions and discrepancies, besides a few dishonest improvements. The complainant is husband of the deceased lady and Imtiaz-ul-Hassan, being phuphizad of the complainant is also related to her. Both of them are the interested witnesses and lack qualification of being the independent persons. The complainant admitted in his testimony to be an accused of case-FIR No.177/09, dated 12.4.2009, registered for offences under sections 302, 148, 149, P.P.C. at Police Station City Gojra, Toba Tek Singh (Exh.DC), on the complaint of Tariq (appellant), which related to murder of his brother Khadim Hussain. He also admitted his involvement in case-FIR No.111/10, dated 18.2.2010, under sections 302, 148, 149, P.P.C., Police Station City Gojra, Toba Tek Singh (Exh.DD) and in case-FIR No.333/04, dated 4.9.2004, under sections 395, 397 P.P.C., registered at Police Station Saddar Bhakar (Exh.DH). The appellant tendered in defence a couple of other FIRs as well to allege that the complainant was a hardened criminal, who had wide ranging enmity in the area, besides being deadly inimical to him. It was a surprising factor when complainant deposed in his testimony that the accused had targeted his wife to murder her. The accused were four in number, all armed with pistols .30-bore, three of whom, including an unknown person, fired one after the other to put his wife on the ground seriously wounded and the fourth one, who was also unknown, fired ineffectively, is the contention of the complainant (P.W.9). The fire-shot of the appellant allegedly landed at left side of the head, that of Akbar's (since acquitted) at the left hand and the last one made by the unknown accused wounded left shoulder of the targeted lady, is the order of effective firing, as maintained by the complainant. Three of the accused, including the appellant, aimed at and hit the complainant's wife, whereas the fourth one, the unknown, fired erratically at him and his maternal cousin, the complainant, when they ran to save themselves and took refuge behind the 'bases', is the contention of Imtiaz-ul-Hassan (P.W.10). The complainant also said so, as to having saved himself from firing of the accused on the other side of the raised foundations, which were not found built at the spot anywhere near it, when the investigating officer, Muhammad Aslam SI (P.W.11) maidenly visited the place of occurrence and prepared the visual site-plan (Exh.PM). The draftsman Muhammad Rafique (P.W.7) also failed to locate any such raised structure there, which could provide shelter to the eye-witnesses at the crucial hour. The site-plan in-scale (Exh.PG) prepared by him does not verify the said claim of the eye-witnesses either.

14. The accused fired ten to twelve bullets during the occurrence as zoomed by the complainant. but the other eye-witness (P.W.10) calculated them as six. The event as chronicled by the complainant (P.W.9) showed that the accused disembarked their motorcycles and walked provocatively toward him and his wife, when they made targeted firing and sent hapless female reeling to the ground in serious injured condition. No, it did not happen so, would reveal the testimony of Imtiaz-ul-Hassan (P.W.10), who categorically contended that accused still rode the motorcycles when they fired at and murdered Mst.Farzana Kausar. The complainant maintained that he, his wife and his brother stood together with Imtiaz-ul-Hassan (P.W.10) at one place, when incursion was launched by the accused. Imtiaz-ul-Hassan, however, believed that the complainant's wife stood at some distance from rest of them, when she was attacked by the accused. The visual site plan (Exh.PM) also lent same sort of impression. The complainant could not see as to which side the accused had come from but Imtiaz-ul-Hassan said that they drove to the place of occurrence from the same route as taken by the complainant. Their statements certainly established the deadliest enmity between the parties and Mst.Farzana Kausar might not have figured so high in the trail of rivalry that she alone would have been targeted and put to ground seriously injured by the accused, being 'merciful' to the real enemies. The eye-witnesses have not contended in their testimonies that they had any sort of arms with them, rather it is established that they were empty handed then. Had they been there at the spot along with the poor-lady at the time of occurrence. they might have not survived the onslaught of their adversaries, which must have been the logical flow of the event occurred.

15. The eye-witnesses have also made dishonest improvements in their testimonies in an anxiety to establish their presence at the spot at the relevant time of the occurrence. The complainant (P.W.9) admitted to have newly introduce the factum of jumping and saving himself behind the raised-foundations despite having not so mentioned in his written application (Exh.PE). He made this improvement certainly bearing in mind, that in absence of any deposition as to successfully hiding himself behind something, he might not persuasively establish his presence at the spot at the relevant time of the occurrence. Imtiaz-ul-Hassan (P.W.10) did not lag behind as he too invented the similar deposition in his testimony, besides making some other improvement, though not of equal significance. He was duly confronted with his previous statement (Exh.DA) for all the innovations that he had made and he was falsified on each occasion. The witnesses of ocular account behaved unscrupulously and they showed little respect for preliminary lessons of morality and made uninhibited exaggerations dishonest improvements in their statements, with a view to bring their case in conformity with the medical evidence and in order to fill-in the lacunae, which were left in the FIR (Exh.PE/1). They, for their polluted conduct, cannot be considered truthful witnesses and their testimonies which are laden with improvements, cannot be given any positive nod. It has been held by the apex court in Farman Ahmad v. Muhammad Inayat and others (2007 SCMR 1825) that:- "It is also a settled maxim when witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses." Tauheed Abbas, real brother of the complainant and another eye-witness of the occurrence, who allegedly rode the same motorcycle as did by the complainant and his wife to reach the spot, had been given-up at trial by the prosecution being unnecessary. He was the one who could have rendered necessary corroboration to the contention of the complainant. By withholding him from tendering evidence, the prosecution has not acted wisely. The eye-witness account looks inherently incredible and hard to rely on, having not been tendered by the truthful witnesses. Their testimonies, being untrustworthy, are bound to be rejected, which we accordingly do.

16. It is Dr.Faiza Kanwal, WMO (P.W.1), who tendered the medical evidence being the first person to have medically examined Mst.Farzana Kausar in injured condition at 11.04 p.m. on 18.7.2009 vide MLR (Exh.PA), which entailed five firearm injuries, noted hereinbefore, two out of which (B-I & B-II) proved terminal later on, for, these injuries had smashed the skull and damaged the brain matter. The injured-lady was shifted to Allied Hospital Faisalabad immediately after her medical examination and initial treatment at Government Eye-cum-General Hospital, Gojra. When medically examined for her injuries, she was found unconscious and she could not resuscitate till she expired on 28.7.2009. The said woman medical officer (P.W.1) also performed autopsy the dead body of the deceased lady at 12.45 p.m. on 28.7.2009 at the same hospital of Gojra, vide postmortem examination report (Exh.PB), pictorial diagrams (Exh.PB/1 and Exh.PB/2). She could not show required degree of expertise, when she prepared the necropsy report, having not independently mentioned external injuries on the dead body and she merely referred to the MLR (Exh.PA) in this regard, in the relevant space of the said report. All the wounds, except for injury No.5-C, as mentioned in the MLR, were found stitched when she started dissection of the dead body. She unstitched the said injuries and recorded her findings as to the damage done by them. According to the allegation, the appellant had caused an injury at left side of head of the deceased, but no such injury existed at the said locale, instead, a firearm entry wound existed at left eyebrow, which exited at the site of right side of head crossing midline, with tissues and brain-matter flowing from the wound, making an oblique ascending track. The exit wound had probably been misread by the eye-witnesses when they alleged it to have been caused by the appellant.

17. The woman medical officer (P.W.1) made a clerical mistake when she cross-referred to injuries Nos.A-I and A-II, the left-hand injuries and injuries Nos.B-I and B-II, the forehead and midline-crossing head-injuries, against each other while recording the cause of death, probably bearing in mind that injuries Nos.A-I and A-II, as shown in the MLR (Exh.PA) related to the skull and injuries Nos.B-I and B-II involved left hand of the deceased-lady, which, in fact, was vice-versa. She felt the mistake and made mends for it, when she tendered evidence during trial as P.W.1. Learned defence counsel cross-examined her on this point excitedly but it remained a hard fact that it was nothing but a clerical mistake. The medical evidence in its present form does not, however, lend any corroboration to the prosecution case, after rejection of the eye-witness account precedingly.

18. The appellant was arrested on 15.10.2009. Nothing was recovered at his instance. He was found not involved in the occurrence by the investigating officer (P.W.11) during the course of investigation. His co-accused Akbar Ali had allegedly caused an injury at left hand of the deceased, which bore two firearm injuries as per contents of the MLR (Exh.PA) and the necropsy report (Exh.PB). Learned trial court acquitted him of the charge through the impugned judgment by holding that prosecution had fallen through in establishing his guilt. The prosecution or the complainant did not challenge his acquittal, which attained finality by the afflux of time. There could hardly be chosen anything between the appellant and the acquitted co-accused, but the learned trial court resolved the issue otherwise, by holding the appellant guilty and awarding him the impugned sentence, which only meant that it misconstrued the proposition involved herein. The inferences drawn by the learned trial court are incompatible with the evidence available on the record.

19. The accumulative effect of the discussion, made hereinabove, is that the prosecution has failed to establish its case against the appellant beyond reasonable doubt, the benefit of which obviously must go to him. The present appeal is accepted. The conviction and sentence of the appellant is hereby set aside. He should be set at liberty forthwith if not required in any other case.

20. Insofar as Criminal Revision No.490 of 2010 filed by the complainant for enhancement of sentence of the appellant is concerned, it, being meritless, for the reasons recorded hereinabove, stands dismissed. SL/M-79/L Appeal allowed.