2003 P Cr (PLP)

SHABBIR AHMED, J.

The above appeals are directed against the judgment of conviction dated 6th May, 2000 passed by (Mr. Muhammad Saad Qureshi) IInd Additional Sessions Judge, Khairpur, whereby he convicted the appellant Abdul Hussain under section 302(a), P.P.C. and sentenced him to death. The appellant through Jail Superintendent has also preferred Jail Appeal No.41 of 2001. We propose to deal with both appeals by common judgment. Occurrence in this case had taken place at 18-30 hours on 16-9-1995 in the common street known as Mir Street in Deh 39, Hussainabad Village at a distance of 15/16 Km: from Police Station Kotdiji. First Information Report (Exh.5/A) was recorded at Police Station Kotdiji by. S.I.P. Ghulam Jillani the same day at 20-00 hours on the statement of Ali Hassan P.W.1, real brother of deceased Zamir Hussain. According to the report deceased Zamir Hussain aged 20/21 years was his younger brother, about one year back they had purchased a house from Gilo Malh son of Rasham Malh in their village Hussainabad, on that Abdul Hussain was annoyed and used to say that why they have purchased the house. The father and brother of Abdul' Hussain tried to pacify advice to Abdul Hussain, in spite of that advice Abdul Hussain (appellant) had no talking terms with them. His brother Zamir Hussain used to run Kiryana shop. On the fateful day, as usual, his brother, after closing the shop was coming towards the house. he alongwith his cousin Nizakat Ali son of Muhammad Hussain (P.W.2), (2) Muhammad Dino son of Rahim Bux (not examined), were standing outside the house in the street, when his brother Zamir Hussain reached there in the street. It was about 18-30 hours at that time Abdul Hussain son of M. Yaqoob (appellant) armed with pistol, (2) Yar Muhammad son of Pir Bux, empty handed (not challaned) by Caste Khaskheli resident of the same village suddenly encircled his brother. Yar Muhammad said to his brother Zamir Hussain that you have not done better in your favour by purchasing the house from Gillo Malh Menghwar, so today you (Zamir Hussain) will not be spared. Yar Muhammad instigated Abdul Hussain to kill Zamir Hussain. On such instigation, Abdul Hussain directly fired at Zamir Hussain with pistol in their presence which hit Zamir Hussain who fell down while crying. Due to fear they remained away from Zamir Hussain. Thereafter both accused went towards North side. On cries raised by them, Sakhawat Ali (P.W.3) and other people of the village came there. They also saw accused. They narrated the above facts and found Zamir Hussain in injured condition on chest and in their presence he succumbed to injuries. After leaving with witnesses to guard the dead body, he proceeded to police station and reported the matter that Yar Muhammad and Abdul Hussain due to controversy (annoyance) on purchase of the house has murdered his. brother Zamir Hussain with pistol. Ghulam Jilani, S.I.P. (P.W.7) after recording the F.I.R., proceeded to the Wardat and inspected the Wardat in presence of Mashir Salamat Ali and Juma under the memo. of Wardat (Exh:8/A). He also prepared the inquest report of the dead body in presence of the same Mashir (Exh.8/B). Then he dispatched the dead body of Zamir Hussain to hospital for the post-mortem through P.C. Shabbir (not examined). Thereafter he recorded the statement under section 161, Cr.P.C. of P.W. and sent letter to the Mukhtiarkar for preparation of the sketch of place of Wardat but neither sketch was prepared nor produced. The autopsy was conducted by Dr. Syed Hussain Niamat (P.W.5) of the dead body of Zamir Hussain on 16-9-1995 by starting the post-mortem at 11 a.m. and finished the same day at 11-45 p.m. The dead body was identified by Salamat Ali and Rahim Bux, cousin and uncle of the deceased respectively. On external examination, doctor found the following injuries:-- (i) One fire-arm entrance wound 6 x 6 c.m. bone deep on the middle (center) chest front side. Blackening around the wound present. (ii) Two pellets found during post-mortem. On external examination of the dead body he found the following damages: (1) Fracture of stream bone and 4th and 5th ribs, pleurae damaged, right lung congested, left lung damaged, pericardium and heart congested and damaged. On external and internal examination of the dead body he was of the opinion that the death was caused as a result of shock and haemorrhage caused by discharge from the fire-arm. The time elapsed between the death and the injury within 2/10 minutes. Time elapsed between the death and the post-mortem within four hours as per the post mortem report Exh.9/A. Thereafter, the investigation was transferred to S .P. Afsar Ali (not examined). On 8-10-1995 the appellant was arrested at 18 hours from the Bus Stop of Hussainabad in the presence of witnesses Salamat Ali and Sher Muhammad under the memo. of arrest (Exh.8/C). On 12-10-1995 while the appellant was in police custody, he led the police party to the crops of Imam Dino and from beneath the bushes, he produced a country made .12 bore pistol with wooden handle in working condition. It was empty. The said pistol was sealed under the memo. of recovery (Exh.10/A). The prosecution collected and produced the following evidence at the trial:-- (1) Ocular version, furnished by eye-witnesses. P.Ws. Ali Hussain and Nazakat Ali. (2) Corroboration of their evidence by P.W. Sakhawat Ali regarding identification of the assailants while decamping from the Wardat with pistol and narration of the incident by the witnesses. (3) Motive, annoyance of the appellant due to purchase of a house by the complainant party. (4) Recovery of crime weapon viz. country made .2 bore pistol. (5) Medical evidence. The trial Court proceeded with the trial and the prosecution examined Ali Hasan, Nazakat Ali as eye-witnesses of the occurrence. Sakhawat Ali in corroboration of eye-witnesses evidence and witnesses of inspection of Wardat, inquest report and arrest of the appellant Abdul Hussain, P.W. Syed Hussain Niamat, Medical Officer who had conducted the post-mortem on the dead body of the deceased. P.W., Jumo witness of recovery of crime weapon and P.W. Ghulam Jillani, the Investigating Officer who recorded the F.I.R. proceeded to Wardat, inspected the same prepared the inquest report dispatched the dead body for the post mortem, recorded 161 statements of the witnesses. Through him the prosecution also proved the signature of S.I.P. Afsar Ali on memos. of arrest and recovery prepared by him (second Investigating Officer), who had arrested the appellant and effected the recovery of crime weapon on his pointation, but could not be examined due to retirement and his whereabouts being unknown. The appellant met the prosecution case with bare denial in his 342, Cr.P.C. statement by pleading his innocence and implication by the witnesses due to enmity. He has not examined himself on oath under the provisions of section 340(2), Cr.P.C. but examined Ali Murad in his defence. The learned trial Court by the impugned judgment convicted the appellant and sentenced him as stated hereinabove. Hence the appeals. We have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Arshad Lodhi, learned Assistant Advocate General for the State. We have also reappraised the evidence with their assistance. Before proceeding with the merits of the appeal, we would like to address the legal points raised which, according to the learned counsel for the appellant are fatal to the prosecution case. Following are the legal points:-- (a) Conviction under section 302(a), P.P.C. Punishment with death by Qisas can be inflicted only when the witnesses were subjected to Tazkiya-Tush-Shahood, which is absent in the present case, therefore, punishment of death by Qisas cannot be inflicted against the appellant. (b) There is no reference by the trial Court in terms of section 374, Cr.P.C. for confirmation of the death sentence by this Court under the provisions of section 376, Cr.P.C. Therefore, there is nothing before the Court to confirm the sentence. (c) The sentence of death is to be inflicted in the terms of section 368, Cr.P.C. which requires that a person sentenced to death, the Court shall direct `he be hanged by the neck till his dead'. Whereas the trial Court has sentenced the appellant "to hang till his death", not a legal sentence. Adverting to first ground, Mr. Halepota maintained that in case of Qatl-i-Amd, liable to death by Qisas, the requirement of law is that the witnesses must stand the test of Tazkiya-Tush-Shahood. Such exercise has not been done by the trial Court in respect of witnesses before accepting their testimony, as such the sentence of death of the appellant in terms of section 302(a) cannot be imposed. To support his contention, the view expressed by Shafiur Rehman, J. as Chairman of the Shariat Appellate Bench, in Manzoor v. The State 1992 SCMR 2037 was referred to the effect that in case of Qatl-i-Amd liable to death by Qisas, the requirement of the Islamic law is that the witnesses must stand the test of Tazkiya Tush-Shahood and the importance of it has been emphasised in Sanaullah v. The State PLD 1991 FSC 186 in the following words: -- "Tazkiya-Tush-Shahood is obligatory in cases of punishment with Hadd and Qisas even if the competency of a witness is not challenged by Mashood Allah." In the case of Ghulam Ali v. The State PLD 1986 SC 741 it was held that `where proper Taxkiya-Tush-Shahood was not done of any witness, the conviction under the Islamic law cannot be sustained. In the present case this requirement has not been satisfied and conviction in the injunction of Islam cannot be awarded. He further contended that the same view was reiterated by the apex Court in Muhammad Saleem v. The State PLD 2002 SC 558 in para. 12 of the report as follows:-- "On overall assessment of the evidence in the light of the precedent case-law, legal position appears to be that where the prosecution has established the guilt of the accused by satisfactory and reliable evidence on the touchstone of Tazkiya Tush-Shahood normal penalty Qatl-i-Amd, is Qisas i.e. penalty of death in which the Court is left with no option. However, if the witnesses do not qualify the standard of competent witnesses, as prescribed by Islamic Injunctions, conviction can be recorded under clause (b) of section 302, P.P.C. by way of Ta'zir i.e. death or imprisonment for life, depending on the facts and circumstances of each case." There is no cavil with the proposition enunciated in the above cases in absence of proof of Qatl-i-Amd in the form prescribed under section 304, P.P.C. or witnesses do not qualify the standard of competent witnesses as prescribed by the Islamic Injunction the sentence of death by Qisas cannot be awarded. However, conviction can be recorded under clause (b) of section 302, P.P.C. by way of Ta'zir, clause (b) of section 302 prescribes punishment with death or imprisonment for life as Ta'zir. The learned Assistant Advocate-General, has conceded to this proposition and frankly admitted that this Court has power to modify the sentence under section 302(a) to 302(b), P.P.C. Therefore, the objection is not of much importance the conviction recorded by learned Additional Sessions Judge under section 302(a), P.P.C. can be altered under clause (b) of section 302, P.P.C. if the circumstances so warrant. So far as the point No.2 with regard to the effect of non reference, by the trial Court for confirmation of death sentence and the power of this Court under the provisions of section 376 for its confirmation is concerned, we would like to address the plea after disposal of the appeal as proviso to section 376, Cr.P.C. contemplates the disposal of appeal first by this Court, then to consider whether the sentence be confirmed. The last point is the mode of execution of the sentence recorded by the trial Court is not in conformity with the provisions of section 368 of Cr.P.C., which enjoins upon the Court while sentencing a person to death to direct that such a person `be hanged by the neck till he is dead'. The trial Court while sentencing the 'appellant to death has directed that "he [be] hang(ed) till his death". The words "by the neck" are missing between the words "hanged" and `till". Mr. A.Q. Halepota has contended that this Court has no power to correct the error of the Sessions Judge and referred the case of The Crown v. Saidu PLD 1952 Lah.

560. The relevant facts were that the appeal filed by the respondent was dismissed and sentence of death was confirmed. The respondent appeared to have taken up position as it was not mentioned in the judgment that they be hanged by the neck till they are dead, they cannot be hanged. On such plea, the learned Advocate General filed a petition. Notices were issued on convicts, Advocate -General was heard, the question was whether it was a "clerical error" and whether it could be corrected by this Court (High Court) it was observed that the case was tried in the first instance by the Sessions Judge, Lahore. He passed sentence of death and under section 368 of Cr.P.C. it was his duty in the case of sentence of death to direct that he be hanged by the neck till he is dead. This mode of execution of death sentence as prescribed by the Code was not specified. On appeal under section 423, Cr.P.C. the duty of the Appellate Court was to decline to interfere if there was no sufficient ground and dismissed the appeal and Court was under no obligation to define the mode in which it was executed. That was the function of the trial Court. The Court in appeal was simply to see whether the judgment of the first Court was not to be maintained or was or was not to be altered in any respect. Therefore, the judgment of the High Court was not deficient in any respect. The Bench also after examining the provisions of section 374 concluded that the High Court may confirm the sentence. or pass any other sentence warranted by law confirmed by the High Court under section 376, Cr.P.C. would amount only that the death sentence awarded, by the trial Court was, in view of the High Court an appropriate sentence and should be allowed to stand. In confirming the death sentence awarded by the trial Court was, an appropriate sentence and should be allowed to stand. In confirming the sentence of death, it is nowhere 'prescribed that the High Court should, directly state the sentence was to be executed by hanging as prescribed in the Code. The Bench also, after examining the provisions of section 369 Cr.P.C. for correction of "clerical error", concluded that the High Court has no power under the law to alter the judgment and only where some clerical errors are to be corrected that might be done. The petition was dismissed as the "clerical error" if any, was that of the Sessions Judge, who failed to direct that the sentence be carried out by hanging by the neck. The High Court can only correct its, own error and not that of any subordinate Court/Judge. In the instant case, no doubt, the error is apparent as pointed out in the judgment. We can safely draw the inference that such error could be rectified by the same forum, where it is erupted. Perhaps, if the prosecution would have been vigilant enough the same could have been rectified by the trial Court. The Additional Sessions Judge on over all assessment of the evidence concluded that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned Additional Sessions Judge accepted the evidence furnished by witness Ali Hassan and Nazakat Ali, eye-witnesses of the occurrence and corroboration of their evidence furnished by Shakhawat Ali on the point of identification of the assailants while decamping from the Wardat with pistol and narration of the incident by the witness to him. Further corroboration was found from the motive and recovery of crime weapon and the medical evidence. The death of the deceased in the manner alleged by the prosecution has not been disputed even otherwise the Medical Officer, Syed Hussain Niamat who had conducted autopsy of the dead body of Zamir Hassan, was examined at the trial. On external and internal examination of the dead body, he was of the opinion that the death was due to shock and haemorrhage as a result of injuries caused by discharge from the fire-arm. His evidence is sufficient to establish death of the deceased Zamir Hassan in the manner alleged by the prosecution. Next question for consideration is whether the appellant is author of the injuries on the person of the deceased. It is now well-settled that the medical evidence can furnish corroboration but itself will not C establish the identity of the assailant or to connect the appellant with crime Muhammad Iqbal v. Abdul Hussain 1994 SCMR 1928 and Muhammad Ahmed v. The State 1995 SCMR

127. The learned Assistant Advocate-General has supported the judgment of conviction by contending that the incident is of sunset time sufficient light was available for the identification of the assailants, who were identified by the witnesses through close relatives of the deceased. In absence of any enmity they cannot be termed inimical towards the appellant so their evidence has been rightly accepted by the trial Court, which is corroborated by other pieces of evidence such as "motive" and `recovery". His further contention was that there was neither chance of mistaken identity nor the substitution of the real assailant with the appellant. The prosecution case, as furnished by the eye-witnesses Ali Hasan and Nazakat Ali, is that while they were present in the street i.e. site of wall, which was under construction, the deceased Zamir Hussain returned from the shop after closing it. In the meantime, appellant Abdul Hussain and Yar Muhammad emerged from southern side. Yar Muhammad challenged his brother (Zamir) that he has purchased the house from Gulo Mal and thus has done injustice with them and he would not be spared. Yar Muhammad instigated accused Abdul Hussain who fired from his country made pistol which hit deceased Zamir Hussain who fell down after receiving injuries on chest. They decamped. On cries raised by them, P.W. Sakhawat Ali and other persons of the village came there. Evidence of the eye-witnesses has been attacked by Mr. Halepota, learned counsel on many counts, firstly that eye-witnesses Ali Hasan, is brother of deceased Zamir Hussain, Nazakat Ali, is cousin, whereas Sakhawat Ali is also cousin, not a single witness has been associated as witness though the arrival of independent persons is admitted who had attracted on cries with Sakhawat Ali. P.W. Ali Hasan has improved the prosecution case by stating at the trial that the appellant unloaded the pistol and loaded it with cartridge at the Wardat. This fact has not been stated by him in the First Information Report and such improvement was with the purpose to create evidence i.e. the presence of empty at the Wardat, otherwise the ejection of empty and its presence at Wardat was not possible. Their testimony has not been believed qua Yar Muhammad, who was let off during the investigation though he was assigned active role with instigation to the appellant to kill the deceased. Their testimony has not been accepted in its totality, thus, they are not wholly reliable. Their evidence cannot be the basis to sustain the conviction unless corroborated by independent source Mr. Halepota referred the case of Atta Muhammad v. The State 1995 SCMR 599, wherein the ocular evidence has been classified by the apex Court into three categories, firstly wholly reliable, secondly wholly unreliable and thirdly partially reliable and partially unreliable. He further pointed out that in the first category the conviction may safely be sustained on uncorroborated testimony, in the second category even the strongest corroborative evidence will if, rehabilitate such evidence, in the third category conviction can be recorded provided such evidence is corroborated by oral or Circumstantial evidence coming from the distinct source. His further submission was that their presence at the Wardat was as chance witnesses. They were present to see the construction of wall, thus, their, presence was required to be proved before the acceptance of their testimony. He pointed out that according to prosecution witnesses Ali Hassan, mason, Ali Murad was constructing the wall mason, Ali Murad was not examined by the prosecution to prove the presence of witness Ali Hassan and Nazakat Ali during the investigation not at the trial but he was examined as defence witness he denied the construction of wall by him as alleged by the prosecution. The under-construction wall has not been noticed by the Investigating Officer at the time of inspection of Wardat in memo. of inspection. His submission was that the prosecution case is full of doubts. The prosecution story, furnished through Ali Hasan, Nazakat Ali and Sakhawat Ali is tailored one and not supported by the circumstances appearing in the case i.e. the absence of under-construction wall not noticed by the Investigating Officer, during the inspection of Wardat though the presence of the wall of Mir Muhammad Hussain at Wardat was noticed; secondly the deceased was returning after closing the shop at the end of the day, the cash of the day's sale and the keys of the shop should have been found with the person of deceased or at least at, the Wardat, neither cash nor the. key was found by the Investigating Officer while inspecting the Wardat nor at the time of inquest of the dead body. Even the shirt was not found on the person of dead body except a lion cloth. A shirt stated to be stained with blood and Ajrak was noticed by the Investigating Officer at the time of inspection as reflected in the memo. of Wardat (Exh.8/A) but neither the same was sent for chemical analyses nor was produced during the trial. On above premises Mr. Abdul Qadir Halepota argued that the possibility cannot be ruled out the incident was an unwitnessed crime not at the time claimed by prosecution but in the dark of the night and the Medical Officer, in order to bring the time of death to tile in the prosecution version as given by Ali Hasan in F. I. R. has tampered number 1 into 4 in last column of Part VI of the report though such suggestion was denied by Medical Officer during his evidence but on comparison of writing styles of the numerical 4 with numerical 4 appearing in column of examination of body the finishing time 11-45 and in column, fracture/ dislocation of bone in part (I) and (V) of the post-mortem, respectively, the numerical 4 written in above columns the numerical 4 of last column of Part (VI) are different in style of numerical 4 of the other columns, which is admitted by Medical Officer also. Rigor mortis and post-mortem levidity are relevant factors for ascertainment of time of death but the Medical Officer has not noticed these factors, during post-mortem examination which affects the honesty and impartiality of the post-mortem examination in such circumstances. According to Modi's Medical Jurisprudence and Toxicology 21st Edition "time since death should be noted (and interpreted with caution) from the rectal temperature of the body, post-mortem staining, rigor mortis, stage of putrefaction. His further contention was that though corroboration of the testimony of eye-witnesses Ali Hasan and Niamat Ali has been sought through Sakhawat Ali on two counts; firstly that he identified the assailants while decamping from the Wardat and secondly the narration of the incident to him by P.W. Ali Hasan and Nazakat Ali. He contended that said witnesses were examined they have not deposed that they had given version of the incident to Sakhawat. Their testimony is only to the extent that on cries Sakhawat Ali and other persons also came at the Wardat but they have not deposed at the trial that Sakhawat was informed about the incident by either of the two witnesses. Therefore, the testimony of Sakhawat to that extent is hearsay and is liable to be excluded in terms of Article 17 of Qanun-e-Shahadat. To support his contention he has referred cases of Muhammad Rashid v. Maqbool Ahmed PLD (sic) Kar. 356 and Ishaq v. The State PLD 1985 Kar.

595. In above cases the statement was excluded being hearsay statement. He further contended that even the presence of P.W. Nazakat Ali at the Wardat is also doubtful as he has admitted that neither his statement under section 161, Cr.P.C. was recorded nor 161 statement of any witness was recorded in his presence. If he would have been present at the Wardat, he could have been examined by the Investigating Officer. Secondly P.W. Nazakat Ali, due to darkness, could not identify his own brother Sakhawat Ali. In such circumstances the identification of assailant, for the same reason, becomes doubtful, by Sakhawat Ali. The ocular testimony furnished by Ali Hasan and Nazakat was not accepted by the Investigating Officer qua Yar Muhammad who was not sent up for the trial though he was assigned active role in encircling and instigating for commission of crime to the appellant. They are chance witnesses as they had gone to see under-construction wall being raised by mason, Ali Murad. Any prudent man in the circumstances would seek for the evidence that support first to the presence of Ali Hasan and Nazakat Ali eye-witnesses on the spot. What makes them to be present together was to see/observe under-construction wall. The mason, Ali Murad, who ought to have been examined by the prosecution to prove the presence of the eye-witnesses. But he was examined in defence and denied such version. The Investigating Officer during the inspection should have noticed the under-construction wall if the same would have been raised, adjacent to the Wardat which was not reflected in the memo. of inspection. Secondly, return of the deceased as stated by prosecution was that the deceased was returning to home after closing the shop at the end of the day then the incident happened. Absence of cash and key on the person of the deceased or at the Wardat. Where is shirt and Ajrak allegedly secured from the Wardat. These factors make the prosecution case not only doubtful but also the presence of the witnesses at the time of incident doubtful. The ocular testimony furnished by the witness Ali Hasan, Nazakat Ali, and of Sakhawat Ali also fall under third category of ocular testimony as classified by the apex Court, partly reliable and partly unreliable. On the basis of such evidence, conviction cannot be recorded unless their evidence is corroborated by oral or circumstantial evidence coming from the distinct source. The corroboration in the instant case has been sought by circumstantial' evidence in the shape of motive (2) recovery of crime weapon allegedly used in the crime. The motive in the present case is annoyance on the purchase of house by the deceased about a year ago. Such annoyance recedes by passage of time and hardly can be a motive for such assault. However, motive has been furnished by the same witnesses, it should have come from the distinct source. It has come in evidence that the purchase was recorded in writing attested by Mukhtiarkar. Thus, the documentary evidence was available according to P.W. Ali Hasan that should have been produced by the prosecution by production of documents attested by Mukhtiarkar or by examining Mukhtiarkar, which has not been done. No doubt, the motive is one of the relevant pieces of evidence which furnishes support to the prosecution case as to the involvement of accused in the offence but it is double edged weapon as ruled in Muhammad Sharif v. The State 1995 SCMR

635. While motive can be sufficient reason for commission of offence by the accused, it can equally be a reason for false involvement of the accused in the crime. Where prosecution case rests solely on the testimony of interested witnesses, it would not be safe in such cases to seek corroboration from the same witness regarding motive as ruled in case of Muhammad Ashraf v. The State 1992 SCMR

279. The motive alleged against the-appellant has not been furnished trough independent evidence to corroborate the interested testimony of eye-witnesses Ali Hasan, Nazakat and Salamat Ali. Therefore, acceptance of motive, through same witnesses would not be safe for corroboration. The second piece of evidence is of recovery of crime weapon i.e country made pistol. After four days of the arrest and after 22 days of the occurrence though the empty was seized from the Wardat it was not sent to Ballistic Expert for examination. The recovery has been attached on two counts, firstly that the recovery has not been proved by prosecution P.W. Salamat Ali one of the attesting witnesses has not deposed about recovery of pistol on the pointation of the appellant, whereas second Mashir, P.W. Juman has deposed that police took him to land of Ghulam Shabbir where from the accused produced the revolver. He has not stated about the recovery or pistol. The recovery of country made pistol from the cotton crops or Imam Dino Punhawar (Exh.10/A), therefore, distinct weapon from different place. Secondly in absence of evidence of use of pistol to connect the weapon with crime through Ballistic Report the pistol so recovered was not sent for examination, to match the empty, to connect the pistol in crime. Therefore, such recovery cannot be relied upon to furnish corroboration as pistol recovered was not sent for examination as ruled in Zafar Hayat v. The State 1995 SCMR

896. The housed of Mir Hussain Bux Talpur, Shafi Muhammad Khaskheli, Masat Ali Khaskheli are in the same street persons attracted to the Wardat were not examined during the investigation neither at the trial. The ocular testimony furnished by Ali Hasan, brother of the deceased, Nazakat Ali, cousin of the deceased and corroboration of their evidence to the extent of identity of the assailant by Sakhawat Ali another cousin of the deceased, is not corroborated by any independent piece of evidence. On the contrary, the story tailored by them does not fit in the circumstances of the case, neither the motive has been proved from the independent source nor recovery of the crime weapon can furnish corroboration to their evidence. They have been disbelieved to the extent of Yar Muhammad, who has been assigned not only the role of Lalkara but encircling the deceased also. Therefore, the case of the prosecution is not free from doubt. The absence of shirt, cash and the key from the person of the deceased and absence of cause (wall) for the presence of the eye-witnesses, possibility cannot be ruled out that the deceased has been done to death in the manner other than as put by prosecution witnesses. The appellant is, therefore, entitled to the benefit of doubt, which was withheld by the trial Court without support of sound reasons. The rule of benefit of doubt which is described as golden rule is essentially the rule of prudence which cannot be ignored while dispensing the justice according to law. It is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". This rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent, as observed by the apex Court in Ayub Masih v. The State PLD 2002 SC 1048. The basic principle of Sharia/laws is that the conviction must be based on evidence beyond any shadow of doubt. This principle can be deduced from an undisputed Hadith, referred by late Chief Justice of Federal Shariat Court, Gul Muhammad Khan, C.J:, in State v. Tariq Mehmood 1987 PCr.LJ 2173:-- "Aisha reported that the Messenger of Allah said `Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him, let him have his way, because the leader's mistake in pardon is better than his mistake in punishment'. Miskhatul Masabih (Eng. Translation by Fazlul Karim), Vol. II, p.544, Law Publishing Company, Lahore." For the above reasons, we have not upheld the conviction recorded by the trial Court and allowed the appeal by setting aside the II conviction of the appellant by short order dated 31-1-2003. In the last, reverting to second legal point that in absence of reference under the provisions of section 374, Cr.P.C. this Court cannot confirm the sentence of death. We have noticed that invariably the, learned Sessions Judges w the proceeding while recording death sentence, either send a letter with caption reference under section 374, Cr.P.C. or remain contended by sending the R&Ps on requisition in appeal filed by the convict. In the instant case as pointed out by the learned counsel for the appellant, there is no reference for the confirmation of the death sentence by the learned Additional Sessions Judge. Such steps by the learned. Sessions Judge are not in conformity either with the provisions of section 374, Cr.P.C. or in terms of clause (xxvi) of para. 7(2) of Chapter 7 of Sindh Courts Criminal Circular. Reference is a proceeding independent of appeal. Appeal is right conferred on the convict under section 418, whereas section 374, Cr.P.C. enjoins upon the Sessions Judge for submission of the proceeding, wherein it has passed death sentence for its confirmation by the High Court, which is a "statutory duty". Full Bench of erstwhile Sindh Judicial Commissioner Court in Gul v. Emperor AIR 1921 Sindh 84 which address by the question referred to the Bench with regard to the limitation and conditions on High Court's power in exercising of its jurisdiction in confirmation of death sentence, has dilated on the important aspects of reference, inter alia: (i) Importance of the jurisdiction, (ii) the scope of jurisdiction while hearing the appeal and the reference, (iii) disposal of appeal first in time then the reference, (iv) right of hearing and (v) duty in law as final safeguard. (i) Importance of the jurisdiction "looking to sections 375 and 376, it is a quite clear that very wide powers are conferred upon the High Court. The Judge is no doubt always the advocatus rei and his duties as such are of course more onerous, than usual, in the case of the death sentence. It might be said that in the present age of necessity of this jurisdiction does not exist to the same, extent as it used to, because at present it is very rare that a person who has been sentenced to death does not appeal. It would have been easy for the Legislature to have made an exception in the case of death sentence to the provision of section 418 as regards appeal. But there may be cases in which the appellant has not the advice of counsel or there may be cases in which counsel for the appellant does not raise all the points that he should, and there may be even cases in which out of some perverse idea the convicted person refuses to appeal. No doubt under rules a condemned person is always represented, but I am referring to the requirements of law. In such cases the High Court should no doubt have full powers to prevent innocent persons being hanged on technical grounds. (ii) The scope of jurisdiction while hearing the appeal and the reference. The power of the Court, while hearing the appeal and while confirming the sentence are distinct and separate. The powers of High Court in appeals are limited by sections 418 and 423, on any error of law or procedure or misappreciation of evidence amounting to miscarriage of justice. The confirmation proceedings from first to last are, however, in law entirely distinct from and independent of an appeal, if any. Import of the proviso to section 376 by the expressions if any appeal is presented declines explicity to assume an appeal in all cases. An appeal is left to initiate to the party, if he so chooses. Confirmation is, under section 374, a duty laid upon the Court of Session to initiate and for the High Court to carry out, independently of either party. The powers in confirmation are laid down in sections 375 and

376. They nowhere vary accordingly as there is an appeal or not, and are not expressly subject to the limitation of powers in appeal section 375, clause (1) with its words `any point bearing upon the guilt or innocence' of the convicted person, shows that it is to this whole broad question of guilt of innocence, to which the confirming Court is to direct its mind and decision. Sections 375 and 376 extended the powers of the confirming Court beyond those of the Appellate Court but not the rights of the sentenced person. He has, in law, the right to appeal and, if he exercises it, the rights limited by sections 418 and

423. With regard to the absence of statutory limitations or conditions and to the exercise of the power under section 376 will be exercised with regard to all the circumstances of each cases like other judicial discretion ought as far as practicable to be left untrammeled and free so as to be fairly exercised according to the exigencies of each case. (iii) Disposal of appeal first in time then the reference It is to be noted that the proviso to section 376 contemplates that the High Court where there is an appeal should first of all decide the appeal, then proceed to consider whether the sentence be confirmed which is merely intended to prevent the premature disposal of a confirmation case where an appeal is pending. (iv) Right of hearing In an appeal, the person sentenced and, on admission, the State also are entitled to be present and to be heard. In confirmation neither party is expressly stated to be entitled to audience, even when additional enquiry is made or evidence taken under section

375. The confirming Bench need not, in express law, the same as the Appellate Bench. (v) Duty in law as final safeguard The worth and sanctity of human life are a test and mark of civilised societies and are increasingly reflected in the criminal jurisprudence a final safeguard somewhat analogous to the functions of the Home Office in England and has laid this duty upon the High Court. As Jenkins, C.J., further observes in Emperor v. Bankatram Lachiram (6 Bombay L.R. 379). This may perhaps increase our responsibilities and add to our labours, but no one would shirk the one or grudge the other even in a case where the liberty, much more where the life, of the subject is concerned this duty of judgment is however, laid in the first instance upon the trial Judge. But equally and with all this weight. High Court in confirmation must finally weigh for itself the whole evidence in the light of all the arguments and confirm or otherwise according to its own final conclusion on the guilt or innocence of the sentenced person in the discharge of the duty laid upon it by law. From above narration, the matter of submission of proceedings by Sessions Judge in compliance of statutory provisions of confirmation of the sentence cannot be taken lightly or in casual manner. We are of the view that confirmation or otherwise of death sentence is statutory duty and in absence of any period of limitation prescribed for 'reference in Limitation Act, this Court can require the Sessions Judge concerned for submission of the proceedings to enable it to discharge an onerous but statutory duty. We are conscious of the provisions of clause (xxvi) of sub-para, 2 of para. 7 of Chapter VII of Sindh Courts Criminal Circulars, which requires that Sessions Judge shall submit the proceedings to this Court within 14 days of the judgment with record detailed therein in but in absence of a period prescribed in the Limitation Act or Code, the reference after the period prescribed in the Circular will not deter this Court from discharging its statutory duty. The view expressed by us is in conformity with the view expressed by learned Members of Full Bench of erstwhile Sindh Chief Court in Paracho Kewal Ram v. Emperor AIR 1944 Sindh 83 that one of the effects of a death, sentence passed by a Sessions Judge is, under the law, it must be confirmed by the High Court before it can be carried out. If it is brought to the notice of the High Court that the Sessions Judge had omitted to send the proceedings for confirmation of the death sentence to High Court, the High Court can, in exercise of its powers of revision, call for the case and deal with it according to law. As a matter of facts we have not maintained the conviction. The question, therefore, is only of academic importance. However, we again reiterate the direction given by us in admission order of Criminal Appeal No.30 of 2003 to the Sessions Judges for submission of proceedings for confirmation of death sentence in accordance with provisions of Sindh Courts of Criminal Circular referred These are the reasons for the short order announced on 31-1-2003. H.B.T./A-446/K Order accordingly.