P L D 1964 Dacca 710 (PLP)

S. M. MURSHED, J.‑Death Reference Case No. 2 of 1964 and Appeal No. 44 of 1964 were heard together by us and this judgment would dispose of both of them. The condemned prisoner, Basirullah, along with three other accused (since acquitted) was tried by the Sessions Judge of Rangpur on a charge under section 302/34 of the Pakistan Penal Code, with the aid of Assessors. He along with his co‑accused, Abdur Rashid and Abdul Jalil, was further charged under section 201 of the said Code. The prosecution case may be briefly stated as follows: Deceased Jainal Abedin had returned to his residence in the District of Rangpur from a place, called Mahiganj town, shortly after dark on Saturday, the 12th of Jaishtha 1369 B. S., corres ponding to the 26th of May 1962. After a wash and some meal he was called away from his house by Abdul `Jalil (an accused who was acquitted in the trial Court) on the pretext that a salish would be held in the neigbouring house of Basirullah with regard to an incident. Jainal Abedin then left the house with Abdul Jalil. Some time thereafter, at about 8 O'clock in the night, P. W. 3 Fatima Khatun, wife of a son of the deceased hoard some cries from the direction of the house of accused Basirullah and she brought this to the notice of her mother‑in‑law, P. W. 1 Swarupa Khatun, who ran towards that house followed by Fatima Khatun and her sister‑in‑law, P. W. 4 Shahida Khatun. The house of Basirullah was divided into two compartments in one of which lived a person by the name of Shamsul Huq with his family. They heard some sounds and saw a light in the portion of the house occupied by Shamsul Huq, that portion being divided by a fencing. The wife of Jainal Abedin (P. W. 1 Swarupa Khatun) entered into the portion of the house occupied by Shamsul Huq and his family. P. W. 6 Abu Bakar Siddique, a tutor in the house of the deceased Jainal Abedin, and P. W. 5 Renu Mia, a servant of the said house, also went there. It is claimed by them that they saw the accused Abdul Jalil, Abdur Rashid and Basirullah beating Jainal Abedin who was lying in the inner court‑yard. Basirullah had a `chheni' in his hand, whereas Abdur Rashid and Abdul Jalil had daos with them. While they were inflicting blows on the deceased, the wife of Basirullah, by the name of Mofia Khatun, was focussing a torch to help the accused in their activities. Seeing Swarupa, Fatema and Shahida, accused Abdur Rashid and Abdul Jalil stood aside and one of them threw away his dao with which he was beating the deceased. Mofia Khatun picked up the dao and herself began to inflict blows on the deceased. Swarupa caught hold of accused Basirullah with a view to save her husband from further assault and entreated him not to do so, but Basirullah kept on beating her husband who was killed thereby. Swarupa herself received some injuries on her fingers as a result thereof and she, along with her daughters in‑law, went behind the fencing. P. Ws. Abu Bakar Siddique and Renu Mia went away from the place of occurrence in order to summon the villagers there. It is the further prosecution case that Abdur Rashid, Abdul Jalil and Basirullah lifted the body of deceased Jainal Abedin and went towards the east. P. W. 1 Swarupa Khatun and her two daughters‑in‑law (P. W. 3 Fatema Khatun and P. W. 4 Shahida Khatun) saw all these and they moved towards the east by the northern side of the house and set up an alarm. In the meantime, many persons came to the place of occurrence and the accused, after leaving the dead body in a jute field to the east of the house, ran away. The villagers, who had come to the place of occurrence, saw marks of violence there and also noticed blood marks on the spot. They discovered the dead body of Jainal Abedin in the jute field and heard particulars of the occurrence from P. W. I Swarupa, P. W. 2 Sultan Ahmed, who is a first cousin of the deceased, also came to the place of occurrence and gathered all particulars of the occurrence from those who claim to be eye‑witnesses. Ire thereafter formally lodged a first information report at the Thana at 8:10 hours in the morning of the next day, i.e., the 27th of May 1962. Upon completion of the investigation by the police and a preliminary enquiry by a competent Magistrate, the condemned prisoners Basirullah, along with Abdul Jalil, Abdur Rashid and Mofia Khatun, was committed to the Court of Sessions to stand his trial on charges mentioned above. Prosecution has also led evidence to prove a motive for the commission of the alleged crime. The prosecution case is that one Kulsuma, a step‑daughter of accused Basirullah was married to one Abdul Latif. She was abducted by one Gafur, as a result of which criminal proceedings were started by Abdul Latif against the said Gafur, one Gani and accused Basirullah. It is said that the deceased Jainal Abedin was making "tadbir" on behalf of Abdul Latif in that case. All the accused persons, including the condemned prisoner, Basirullah, pleaded not‑guilty to the aforesaid charges. The defence, in so far as it can be gathered from the cross‑examination of the prosecution witnesses, appears to be that the deceased entered the hint of Shamsul Huq during his absence on the night of occurrence and tried to commit rape upon the wife of the said Shamsul Huq, by the name of Mumtaz. Furthermore, it is the defence case that the deceased died as a result of blows inflicted upon him by Mumtaz inside the but and that the accused persons have been falsely implicated in this case. At the trial as many as 19 witnesses were examined on behalf of the prosecution. Defence, however, did not examine any witness. The prosecution case, as set out above, has been given by five witnesses who claim to have seen the occurrence. Other witnesses have been examined to corroborate them. The learned Sessions Judge, on an appraisal of the evidence in the case, acquitted the three co‑accused of the condemned prisoners, namely, Abdur Rashid, Abdul Jalil and Mofia Khatun (wife of the condemned prisoner), who were tried along with him on a charge under section 302/34 of the Penal 0ade. He also acquitted Abdur Rashid and Abdul Jalil of the csharge under section 201/511 of the said Code. He, however, convicted accused Basirullah under section 302/34 and also under section 201/511 of the said Code. He sentenced Basirullah to suffer death on the first count but passed no separate sentences in respect of his conviction on the second count. Hence this reference as also, the appeal. At the hearing of this reference and the appeal we were taken through the judgment pronounced by the learned Sessions Judge as well as the entire evidence and records of this case. It has been vigorously urged on behalf of the appellant that the evidence is this case is insufficient to sustain the conviction of the appellant under the aforesaid charges. At the outset we would like to observe that we did not hear Mr. Abu Hossain Sarkar, learned Advocate for the condemned prisoner, Basirullah, with regard to his conviction under section 201/511 of the Penal Code, in view of the fact that, on a perusal of the evidence in this case, we were of opinion that it was insufficient to find a conviction on that charge. Learned Deputy Legal Remembrancer appearing before us on behalf of the State, has very frankly conceded that point. The sum and substance of the evidence, led on behalf of the prosecution in this respect, is that the body of the deceased was carried to some distance within full view of witnesses who had gone to the place where it was found. The removal of the corpse of a murdered man from the place of occurrence to another place does not, of itself, amount to causing disappearance of evidence within the meaning of section 201 of the Penal Code. This proposition is well‑settled. We may refer to the case of Nagendra Bhakta v. Emperor (37 C W N 348). In this view of the matter, there can be also no question of any attempt to conceal the dead body ; there was no physical attempt to conceal the same. The gist of the offence under section 201 is causing disappearance of evidence of giving of false information or concealment with a view to secret evidence. Even if the prosecution case is accepted in toto. no case has been made out that the condemned prisoner Basirullah had attempted to secrete or conceal evidence. At best, he was frustrated before he could even take the first step towards concealment. An attempt to commit a crime within the mischief or section 511 of the Code should not be confused with an act which merely indicates an intention to commit the same or with mere preparation for its commission. The attempt is not' complete until the act has passed beyond the stage of pre paration. Coming back to the main charge against the condemned prisoner we would also like to observe that the learned Deputy Legal Remembrancer has also very frankly and candidly apprised this Court that he was unable to support the conviction of Basirullah under section 302/34 of the Penal Code and the consequent sentence of death passed on him thereunder. In this connection, we had the advantage of listening to helpful arguments addressed to us both by the learned Advocate for the appellant as well as by the learned Deputy Legal Remembrancer. We will now proceed to discuss the evidence. P. W. 1 Swarupa Khatun, P. W. 3 Fatema Khatun, P. W. 4 Shahida Khatun, P. W. 5 Renu Mia and P. W. 6 Abu Bakar Siddique have stated in the trial Court the prosecution case, as set out above, and we shall deal with them separately. P. W. 1 Swarupa Khatun has practically given all the details of the occurrence, as stated above. The most notable features, to note only some of them, with regard to her evidence are: The night of occurrence was a dark and cloudy one. The story of accused Mofia Khatun (wife of Basirullah) focusing a torch, while the rest of the accused persons were carrying on the murderous assaults on the deceased was imported at a later stage. The co‑accused Abdul Jalil is a man from a totally different village and no enmity between him and the deceased has even been suggested by the prosecution, His presence at the scene of occurrence is extremely incongruous, far less his participation in the said occurrence. The other co‑accused Abdur Rashid is a nephew of the deceased; the deceased stood in loco parentis to him. There is no evidence of any ill‑feeling between the nephew and the uncle which might explain the startling allegation that he had participated in the murderous assaults on the deceased. But the fatal defect in the evidence given by this witness (P. W. 1) is that she did not state to the investigating officer that Mofia Khatun (wife of the condemned prisoner) and Abdur Rashid had at all struck her husband. This can, to say the least, only mean that whereas she was not sure whether the aforesaid two persons were amongst the assailants of the deceased, she has given positive evidence to that effect in the trial Court. There is no escape from the conclusion that she was giving false evidence in Court, at least, in so far as she was speaking with certainty that they, in fact, participated in the crime itself. (We may notice that this witness has also stated that P. W. 3 Fatema Khatun and P. W. 4 Shahida Khatun also narrated the occurrence to P. W. 2 Sultan Ahmed who lodged the first information report). P. W. 3 Fatima Khatun substantially corroborates the evidence of P. W. 1 Swarupa Khatun. Her evidence also suffers from the same defect and, furthermore, it appears from her evidence that she stated to the investigating officer that she had recognised Abdul Jalil by his voice. This is in direct conflict with her testimony in the trial Court. This witness has further stated in her cross‑examination that there were a number of houses near about the place of occurrence including some Hindu houses. She has categorically stated that many persons from these houses came to the place of occurrence and saw the infliction of blows on the deceased. In this background, the fact that only the inmates 'of the household of the deceased have been produced by the prosecution, assumes considerable importance It further appears that she did not even name Abdul Jalil, Abdur Rashid and Mofia Khatun in her statement to the investigating officer. So far as P. W. 4 Shahida Khatun is concerned, it appears from her cross‑examination that she did not state to the investi gating officer that she and her sister‑in‑law Fatema Khatun (P. W. 3) had followed their mother‑in‑law (P. W. 1 Swarupa Khatun) to the platy of occurrence. She also stated to the investigating officer than she had recognised Abdul Jalil by his voice. Furthermore, she did not tell the investigating officer that Abdul Jalil, Abdur Rashid or Mofia Khatun inflicted blows on tale deceased. This witness has stated in her cross‑examination: "We all narrated the occurrence in details to Sultan before he went to the Thana. He stayed in our house during the whole night. The aforesaid witness, namely. P. W. I Swarupa Khatun, pt W, 3 Fatema Khatun and P. W, 4 Shahida Khatun, have introduced in their deposition a story which they did not narrate earlier, namely, that Shamsul Huq and his wife Mumtaz were away from the house during the night of occurrence: The next witness is P. W. 5, Renu Mia. It would be seen that this witness does not claim to have seen the occurrence in its entirety. He claims to have seen Basirullah inflicting blows with a chenni upon the person of the deceased. He also intro duced the story that Basirullah's wife, i.e., Mofia Khatun, focused a torch on the deceased at the time when he was assaulted. From his cross‑examination it appears that he stated to the investigating officer that Basirullah was armed with a dagger. This is a story which is contradictory to his evidence in Court as well as the evidence of other witnesses. He also did not name any other accused in his statement to the investigating officer. Furthermore, he did not tell him that Fatema Khatun and Shahida Khatun had also gone to the place of occurrence. However, it appears that even in his evidence‑in‑chief in the trial Court he did not state that Fatema and Shahida had followed their mother‑in‑law to the place of occurrence. The last witness who claims to have seen the occurrence is P. W. 6 Abu Bakar Siddique. He says that he saw accused Basirullah inflicting blows on the deceased in the court‑yard of Shamsul Huq. He came away inasmuch as he had received threats from the accused. In his examination he further says that he did not see the wife of Shamsul Huq in the house in the night of occurrence. But it appears from his cross‑examination that he did not say so in his statement to the investigating officer. This is all the evidence on behalf of the prosecution with regard to the occurrence itself. Apart from the fact that the evidence of all the aforesaid witnesses, namely, P. W. I (Swarupa Khatun), P. W. 3 (Fatema), P. W. 4 (Shabida), P. W. 5 (Kenn) and P. W. 6 (Abu Bakar) bristles with contradictions (already noticed above), which make their testimony unworthy of credit, the circumstances discussed below deal an effective blow to the prosecution case against Basirullah as well. P. Ws. 1, 3 and 4, that is, Swarupa, Fatema and Shahida, positively incriminate the rest of the co‑accused (Jalil, Rashid and Mofia) who have been very rightly acquitted in the trial Court, as participants in the murderous assault on deceased Jainal Abedin. P. W. 1 Swarupa did not tell the investigating officer that Rashid and Mofia struck the deceased. P. W. 3 Fatema did not tell him that Jafil, Rashid and Mofia inflicted any blow upon the deceased. Similarly, P. W. 4 Shahida also did not say (in her statement given to the investigating officer) that Jalil, Rashid and Mofia also assaulted the deceased. Such omission amounts to contradiction of a most vital character. It completely shakes the credit of the aforesaid witnesses and it is not enough to give Jalil, Rashid and Mofia the benefit of a doubt as to their complicity in the murderous attack on Jainal. The learned Sessions Judge has convicted the condemned prisoner on a charge under section 302/34 of the Penal Code, although he has acquitted the aforesaid accused who are alleged to have been his co‑participants in causing the death of the deceased. The phrase, "benefit of doubt", as used in the Court below, is a highly elastic phrase. If a doubt had arisen as to the ability of the witnesses to identify the other assailants of the deceased, a totally different consideration might have arisen. In this case the only doubt that can arise is as to the credibility of the witnesses themselves with regard to the assailants. A doubt arises as to whether they were speaking the truth. It is the definite prosecution case that the sane light, available through a torch, which enabled the witnesses to identify Basirullah also enabled them to see the other accused, that is, the co‑assailants. The witnesses had either seen all the accused persons or they did not see them at all. There is no via medial in this case. In these circumstances, having very rightly discredited the alleged eye‑witnesses with regard to the participation of the above‑mentioned co‑accused in the alleged murderous assault there is no justification for relying upon the same witnesses, in so C far as the condemned prisoner is concerned. If the witnesses are untrustworthy so far as the co‑accused are concerned, they are also equally untrustworthy in respect of the condemned prisoner. We will notice further circumstances hereafter which will make P. W. 5 Renu Mia and P. W. 6 Abu Bakar Siddique untrustworthy witnesses. But another decisive factor which turns the scales against the prosecution is the evidence of P. W. 2 Sultan Ahmed, who lodged the first information report. Before discussing his evidence, we would like to observe that the first information report lodged by him is the earliest recorded version of the prosecution story. The divergence between the report and the evidence led in the trial Court is so great as to be patently remarkable. It is true that a first information report cannot be used to contradict any witness other than the informant ; but the Court can and, in the present case should, take notice of the earliest recorded statement with regard to the prosecution case in the context of the circumstances which make this particular report of such vital importance in the assessment of prosecution evidence. The aforesaid report was not made by a person who had hurriedly gone to the Thana and had given some kind of indifferent information was given by a very close relation of the deceased at 08'10 hours in the morning following the night of occurrence prior to which the informant had passed the whole night in the house of the deceased and had received, in the course of that night, full and detailed particulars of the occurrence from the prosecution witnesses mentioned above. The very purpose of recording a first information report is to indicate what was the manner in which the occurrence was related when the case was first started and also to show what were the facts given out immediately after the occurrence and reported to the police at the earliest available opportunity. The Court is entitled to note the conflict between the first recorded version oil the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances set out above. The following features of the report are noteworthy in this particular case: (i) P. W. 3 Fatema Khatun and P. W. 4 Shahida Khatun were not named as eye‑witnesses. (ii) There is no mention of the torch‑light by which the wife of Basirullah, namely, accused Mofia Khatun, is alleged to have focussed on the deceased at the time when the assaults took place. It is important to remember that this was the only means of identification in the darkness of a cloudy night. (iii) P. W. 1 Swarupa Khatun (Jainal Abedin's wife) is alleged to have named Basirullah and his wife, but the two other assailants are described as "unknown persons". (iv) Accused Abdur Rashid is stated to have been found in his house and he was not named at all as an assailant. (v) Renu Mia (P. W. 5) is stated to have seen the entire incident, whereas, in accordance with the evidence that he has given in the trial Court, he saw a part of it only. (vi) An unknown person is supposed to have called away the deceased from his house on the night of occurrence. We now turn to the evidence of P. W. 2 Sultan Ahmed. In his evidence‑in‑chief he has stated : "I gathered all the facts relating to the cause of the death from Jainal's wife, Fatema, Shahida, Renu and Abu Bakar and went to the Thana and lodged `ejahar' which was correctly recorded in my presence. It was read over to me and I signed my name. This is the `ejahar' ". He has stated in cross‑examination that a napkin, similar to Exh. IV and a spear‑like thing like Exh. V and also a torch like Exh. III were also possessed by the deceased. He has also stated that accused Abdur Rashid told him that the deceased Jainal Abedin was injured by Mumtaz in her house. He proceeded to say that he found a cut on the fending near the door of the house of Mumtaz. Furthermore, he said that he had seen drops of blood inside the but as well as in the courtyard of Shamsul Huq. He has deposed that he found Mumtaz to the house and that he saw some dried sweets (Khorma) wrapped in a napkin at the place of occurrence. The witness goes on to say that the father of Mumtaz lodged a first information report at the Thana and that Mumtaz was arrested. Moreover, he says that there was a salish over the allegation that Jainal Abedin (deceased) had entered the but of Fatema (sod's wife of Jainal, namely, P. W. 3) at night and attempted to commit rape on her. He admitted that the deceased was reputed to be x man of immoral character. He thus proves almost the entire defence case and, his evidence, if believed, gives a death‑blow to the prosecution case. The question is, whether he should be believed. The learned Sessions Judge has disbelieved the evidence given by this witness in his cross‑examination. He has not recorded any peculiar demeanour exhibited by this witness in course of the trial and the only reason assigned for dis believing hint is that he (the witness) had readily given evidence, in cross-examination, which has helped the defence. Is this good and sufficient ground for shaking the credit of the witness ? He was produced by the prosecution as a dependable witness. s here has no: been the slightest indication on behalf of the prosecution that it no longer takes responsibility for the credibility of the evidence given by this witness. Prosecution has nowhere indicated that it does not rely upon his evidence and furthermore, it did not seek permission to cross‑examine him on points which are not true. He was not, as the phrase goes, declared "hostile" by the prosecution. His evidence in Court is not inconsistent with the first information report which he had lodged. There is no evidence of any overt act of partiality displayed by him towards the accused or the existence of any ill‑feeling between him and the deceased or the family of the deceased. On the contrary, the evidence discloses that, as a near relation of the deceased, the members of his family reposed their confidence in him. He was the recipient of their respective stories and, it appears, that he went as their trusted emissary to lodge information at the Thana. The mere fact that his report as well as" his evidence in the trial Court have come info collision with the evidence of the alleged eye‑witnesses, does not necessarily prove that he has given a false account of the incident as narrated to him by the inmates of the household of the deceased. There are discrepancies in the evidence of the alleged eye‑witnesses and they have been contradicted by the statements which they gave to the investigating officer. There are no such infirmities in the evidence of P. W. 2 Sultan Ahmed. There is thus no justification for rejecting, in a summary and arbitrary fashion, the evidence of this witness. Furthermore, it appears that his evidence has been corroborated in material particulars by independent evidence. His evidence to the effect that he saw Mumtaz at the place of occurrence receives corroboration from the fact that Mumtaz was, in fact, arrested in connection with this case. Furthermore, his deposition that he saw drops of blood inside the but of Shamsul Huq is corro borated by the investigating officer and also by a seizure list that has been exhibited in this case. (See Exh. 8 in this connection). In these circumstances, we do not entertain the slightest hesitation in accepting his evidence which spells the end of the prosecution case. Although our analysis of the evidence, as set out above, is enough to dispose of the appeal and the reference before us, we would like to notice, very briefly, the following circumstances which cast serious doubts as to whether the prosecution witnesses have come out with truth in the evidence they gave in the trial Court: It would be seen that, according to P. W. 3 Fatema Khatun, many men front neighboring houses, including some Hindus, came to the house of Shamsul Huq on the night of occurrence, and saw the infliction of blows on the deceased with dangerous weapons. It is significant that, amongst the witnesses to the occurrence itself, prosecution has merely examined witnesses belonging to the household of the deceased, namely, his wife, two daughters‑in‑law and two dependents. Having regard to the fact that there existed an ill‑feeling between the condemned prisoner and the deceased and also having regard to the fact that the defence taken by him (the appellant‑condemned prisoner) involved an imputation of immoral character against the deceased, it was clearly the duty of the prosecution to produce independent and disinterested witnesses who have seen the fatal assault on the deceased. Prosecution has neither produced such witnesses nor given any explanation as to why they were not produced. In cross‑examination the police officer (P. W. 19 R. C. Khan) who submitted charge‑sheet with regard to this case, named six witnesses mentioned in the aforesaid charge‑sheet, who were not examined by the prosecution, although they were not related to the deceased or connected with him. P. W. 12 Abdul Matin Mollah has given a rather feeble and unsatisfactory evidence showing some remote connection with the condemned prisoner, so far as only three such men are concerned. No explanation has been given for the non‑examination of three others. The appellant is entitled to ask the Court to draw an adverse inference against the prosecution for not examining such witnesses. At any rate, no explanation has been given as to why disinterested witnesses were not examined in this case in respect of the occurrence itself. Then again, it would be seen that P. W. 6 Abu Bakar Siddique has deposed to the effect that, on seeing the infliction of chenni blows on the deceased by the condemned prisoner, he hastened to inform the co‑villagers of the deceased as to the occurrence and to summon them to the house of Shamsul Huq. P. W. 10 Fazal Haque, P. W. I1 Shamsul Haque and P. W. 12 Abdul Matin Mollah, belong to the category of persons who are alleged to have been informed by P. W. 6 Abu Bakar Siddique as to the occurrence itself. It is significant to note that none of the aforesaid witnesses who claim to be the recipient of the information given by P. W. 6 Abu Bakar Siddique says that he was told that Basirullah was assaulting the deceased. They all say that they were told that Jainal was being murdered in the house of Shamsul Huq, but none of them says that the assailants were named by P. W. 6. It has been argued that when one considers that the occurrence took place in a dark and cloudy night and, furthermore, that the identification of the assailants by a torch focussed by one of the accused in this case is a highly improbable story, one begins to doubt whether any assailant of the deceased could have been seen by those who claim to have witnessed the occurrence. It has been also contended that this doubt is strengthened by the fact that the unnatural story of a torch being focussed by Jainal's wife, even when witnesses had arrived at the scene of occurrence, is a later importation into the pro secution case, not being mentioned in the first information report. Besides, the incident itself, that is, the focussing of torch light, is so strange a conduct as to be inconsistent with any thesis except the fantastic hypothesis that Jainal's wife was trying to facilitate the detection of a crime which she 3s alleged to have committed jointly with others. It is also significant that the person who is alleged to have decoyed the deceased to the place where he was done to death, remained an "unknown person" at an earlier stage. He sub sequently received "a local habitation and a name" at a later stage, namely, in the trial Court where the "unknown person" emerged as Abdul Jalil‑a co‑accused‑who has been acquitted by the trial Court. It would be further noticed that P. W. 3 Fatema Khatun and P. W. 4 Shahida Khatun, have not been named in the first information report as witnesses to the occurrence. P. W. 4 Shahida Khatun has also admitted in cross‑examination that she did not tell the investigating officer that she and Fatema went to the place of occurrence. This is a noteworthy omission of a material piece of evidence. P. W. 5 Renu Mia and P. W. 6 Abu Bakar Siddique, who claim to have rushed to the spot where the aforesaid incident took place, do not say that they saw Fatema and Shahida although, they talk of having seen P. W. 1 Swarupa Khatun there. It is thus evident that the suggestions made on behalf of the condemned prisoner as to the origin and circumstances of the occurrence, receive corroboration not only from the evidence of P. W. 2 Sultan Ahmed, but also from the indisputable circum stances of the case. The facts and circumstances discussed above make these suggestions by the defence more probable than the prosecution case as led in the trial Court. The least that can be said on behalf of the defence is that grave doubts arise in the mind with regard to the story which the prosecution bas tried to establish in this case, and we propose to give the condemned prisoner the advantage and benefit of such doubts. In these circumstances, we reject the reference and allow the appeal. The conviction of the condemned prisoner, Basir ullah, under section 302/34 of the Pakistan Penal Code as well as the sentence of death that has been imposed on him, are set aside. Similarly, we also set aside his conviction under section 201/511 of the said Code. We acquit him of the said charges and direct that he be set at liberty forthwith, if not wanted in connection with any other matter. A. S. CHOWDHURI, J.‑I agree. S. Q. Reference rejected and appeal allowed.