P L D 2008 Supreme Court (AJ&K) 6 (PLP)

MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.

Both the above captioned appeals have been filed against the judgment of the Shariat Court, dated 22-2-2007 and both pertain to one and the same case, therefore, these are disposed of through this single judgment.

2. Briefly stated the prosecution case as unfolded in the F.I.R. is that on 16-4-2003 statement of Muhammad Yousaf appellant was recorded by S.H.O. Police Station Bhimber. He stated that he belongs to Upper Las situated in Barhing, while Tariq Mahmood son of Abdul Khaliq resides in Bunny Las situated in Barhing. A year before some quarrel took place between his son Muhammad Yunus and Tariq Mahmood. Tariq Mahmood wanted to take revenge of it. Today at 24-00 midnight he sent his son Muhammad Yunus for calling his uncle Muhammad Khan as he wanted to talk with him. His son Muhammad Yunus was coming back after calling his uncle. Tariq Mahmood was waylaying in the street. Tariq Mahmood fired a bullet from .7 mm rifle, which hit at the abdomen of Muhammad Yunus. Tariq Mahmood ran away. He, along with Muhammad Khan and other people of the village, brought Muhammad Yunus to the Hospital. He succumbed to the injuries. This occurrence was witnessed by Muhammad Khan son of Muhammad Sultan and Rehmat Khan son of Fazal Dad. On this statement of Muhammad Yousaf, a case Exh.PL under section 302, A.P.C. was registered at Police Station Bhimber. After registration of the case on 16-472003 P.W.13, Additional S.H.O. recovered a piece of bullet from the place of occurrence and prepared a parcel and sealed it in presence of P.W. Muhammad Yousaf and P. W.2 Muhammad Khan and prepared a recovery memo. Exh.PB. On the same day he also recovered a broken piece of backside of .7 mm rifle from the place of occurrence and prepared a parcel and a recovery memo. Exh.PC in presence of P.W.1 Muhammad Yousaf and P.W.2 Muhammad Khan. On the same day Doctor handed over the clothes of the deceased after post-mortem and he recovered the Shalwar of blue colour, Shalwar string, a shirt of blue colour and Bunian of white colour stained with blood. The front of the shirt and Bunian contained the signs of firing and prepared a recovery memo. Exh. `PE' in presence of P. W.5 Mian Khan and P. W .7 Ghulam Hassan. P.W.12 Raja Asar Hayat, Inspector Investigation, recovered .7 nun rifle at the instance of Tariq Mahmood, who was under arrest. He pointed out the rifle which was lying in his house in a room under the beds on a cot. He produced .7 mm rifle after picking it up from under the beds. It was recovered at the instance of Muhammad Tariq Mahmood in presence of P.W.5, Mian Khan, and P.W.6, Muhammad Siddique Khan. A recovery memo. Exh. `PD' was prepared. On the same day he also recovered an empty, which was in the gun, in presence of P.W.S, Mian Khan, and P.W.6 Muhammad Siddique Khan, and prepared recovery memo. Exh.`PF'. On 25-4-2003 site plan along with explanation was prepared by Muhammad Zaman, Patwari P. W.8, as Exh.`PH' and `Pr. P.W.11 Dr. Mazhar Iqbal, C.M.O. District Headquarters Hospital Bhimber, conducted the post-mortem and prepared a post-mortem report Exh. `PM' and handed over the same to the police.

3. After completion of investigation, the police submitted a challan before the District Criminal Court Bhimber. After conclusion of the trial both the members of the District Criminal Court (the learned Sessions Judge and the learned District Qazi), awarded one year's rigorous imprisonment to the appellant under section 13 of the Arms Act. Both the members of District Criminal Court were of the opinion that an offence under section 302, A.P.C. was committed by the appellant but a difference of opinion arose between them on the quantum of sentence. The learned Sessions Judge awarded sentence of life imprisonment while the learned District Qazi, the other member, awarded the sentence of 'Qisas' for the commission of murder. Thus the matter was referred to the Shariat Court. A learned Judge of the Shariat Court set aside the sentence awarded to the appellant under section 13 of the Arms Act and acquitted him from the charge, however found him guilty of murder and awarded the sentence of fourteen years' imprisonment. Now against the aforesaid judgment of the Shariat Court both these appeals have been filed. Tariq Mehmood, convict-appellant, has filed appeal for setting aside the fourteen years' imprisonment awarded to him by the learned Judge of the Shariat Court, while Muhammad Yousaf has filed appeal for enhancement of sentence.

4. The learned counsel for the convict-appellant, Mr. Abdul Majeed Mallick, argued that on 16-4-2003 wife of the convict-appellant Shamim Akhtar moved an application before the Superintendent of Police District Bhimber stating therein, that on the day of occurrence Rehmat Khan son of Fazal Dad resident of Upper Las Barhing District Bhimber invited the applicant and her husband to his house for watching the movie of marriage ceremony of her brother on the VCR. Her husband was not possessing any knowledge about their plan. After the movie they forced them to have a cup of tea. After having the cup of tea, they came out of the house. Muhammad Khan, Muhammad Yousaf, Muhammad Yunus and an unknown person were sitting in the way. Muhammad Yunus caught hold of Tariq Mahmood and started grappling with him. Muhammad Khan was armed with a pistol. The applicant restrained hint from firing. He abused her and also gave a slap to her and fired bullet which hit Muhammad Yunus. Muhammad Yunus died. Their women also gave beating to her with a stick. They also gave beating to her daughter. They detained her husband in a room in this way a counter-version regarding the occurrence was brought into the notice of police. The learned counsel further submitted that the applicant in his statement recorded under section 342 of Cr.P.C. also deposed as such and submitted that Muhammad Yunus was murdered by the fire of Muhammad Khan. He further submitted that the version of the appellant finds corroboration from the evidence of prosecution. The learned counsel referred the post-mortem report and submitted that the post-mortem was conducted on the person of Muhammad Yunus son of Muhammad Latif while the deceased was Muhammad Yunus son of Muhammad Yousaf. He further submitted that the post-mortem report contained two injuries while, according to the F.I.R. only one injury was attributed to the accused. According to the post-mortem report the injury contained the blackening and tattooing which was possible only from the distance of 3-5 feet. He submitted that according to the eye-witnesses the bullet was fired from the distance of 21 feet while, according to the site plan, the accused was also shown at the distance of 21 feet. According to the Doctor the injury was inflicted from the distance of 3 feet. He submitted that according to the statement of the eye-witnesses and the site plan Muhammad Khan was at the distance of 3 feet from the deceased. In this way the evidence of the prosecution also lends support to the version of the defence, that the deceased sustained injuries from the hands of Muhammad Khan. The learned counsel further submitted that Rehmat Khan was the most important eye-witness in the instant case, but he was not produced by the prosecution. The learned counsel further referred the statement of Asar Hayat, Inspector C.I.A., who conducted the investigation. He deposed in his statement that according to his investigation the accused fired the bullet from near the deceased. He further submitted that it is wrong that the accused fired the bullet from the distance of 21-22 feet while, according to the site plan, the bullet was fired from the distance of 3 feet. Thus the prosecution has failed to prove that the bullet was fired by Muhammad Tariq from the distance of 21-22 feet. Moreover, this version of Asar Hayat also finds corroboration from the medical report and statement of the Doctor, according to whom, the bullet was not fired from the distance of 21-22 feet but it was fired from the distance of 3 feet and Muhammad Khan was at a distance of 3 feet from the deceased. He further deposed that the wife of the accused moved an application before him but no action was taken on this application. The learned counsel also submitted that when an application was moved by the wife of the convict-appellant before the police, then it was enjoined upon the police to also probe into the matter and look into the version narrated by the defence. The version narrated by the defence was neither investigated by the police nor it was declared false one. The learned counsel further submitted that the convict-appellant sustained injuries during the occurrence and the injury sheet was prepared by the police and he was referred to the Doctor. The Doctor examined him and found him injured. Both the Doctors, Atif Anwar and Muhammad Jehangir Akbar, appeared before the Court and supported the version of the defence but these injuries were suppressed by the prosecution despite the fact that it was brought to the notice of the investigating agency through an application. It was next submitted by the learned counsel that even otherwise the prosecution has failed to prove the case beyond any doubt. He submitted that no blood-stained clay was recovered from the place of occurrence therefore the place of occurrence could not be determined. He further submitted that a gun was recovered from the appellant and it was sent to the Fire-arm Expert along with the empties and according to his report these empties were not fired from the recovered gun. It was also submitted by the learned counsel that there is no unison among the eye-witnesses. According to Muhammad Khan and Muhammad Yousaf the occurrence took place when Muhammad Yunus was coming back from the house of Muhammad Khan, while according to Ahmad Khan the occurrence took place when Muhammad Yunus Nas going for calling Muhammad Khan. The learned counsel submitted that the statements of these witnesses clearly led to the conclusion that the occurrence did not take place in the manner as allege by the prosecution. It was further submitted by the learned counsel that the prosecution has miserably failed to prove the case beyond any shadow of doubt and the version of the defence finds corroboration from the version of the prosecution, therefore, the learned Judge of the Shariat Court has wrongly awarded the sentence to the appellant.

5. It was next submitted by the learned counsel that the learned Judge of the Shariat Court has acquitted the appellant from tl}e offence under section 13 of Arms Ordinance (No.XX) of 1965 which means that the learned Judge of the Shariat Court held that the convict-appellant was not armed with any weapon, while he Was awarded the sentence for murder on the ground that he committed the slay of a man with a rifle of .7 mm. The judgment of the Shariat Court is self-contradictory which is not sustainable. He submitted that it is a well-settled principle of law that the benefit of doubt always goes to the accused.

6. While controverting the arguments of the learned counsel for the appellant, Ch. Lal Hussain, the learned counsel for the complainant, contended that the version of the prosecution finds corroboration from the version of offence. He submitted that it is admitted by the defence that the deceased died during the occurrence in between the night of 15/16-4-2003 and the presence of the convict-appellant is not denied. When it was admitted fact that the deceased died with the fire of the bullet then it is established that the murder was committed by the convict-appellant. It was further submitted by the learned counsel that when a specific defence was taken by the convict-appellant then the onus to prove the innocence was on the convict-appellant and he has to prove his innocence. The learned counsel was confronted to explain that why blood-stained clay or blood was not recovered from the place of occurrence? The learned counsel submitted that it was case of internal bleeding therefore no blood-stained clay or blood could be recovered. He was further confronted that why the inquest report and the injury sheet were not placed on the file? He submitted that although .the inquest report and the injury sheet were not placed on the file but it will not make any difference because there are eye-witnesses. Moreover, the statement of doctor also supports the version of the prosecution. The learned counsel was further asked to explain that the post-mortem report contains the name of Muhammad Yunus son of Muhammad Latif while in the instant occurrence Muhammad Yunus son of Muhammad Yousaf was murdered? He submitted that inadvertently the name of Muhammad Latif was written by the doctor. It was further submitted by the learned counsel that although the report of Fire-arm Expert contains that empties were not fired from the recovered gun but in presence of the eye-witnesses there was no need of the report of Fire-arm Expert and there was sufficient evidence. He submitted that the learned Judge of the Shariat Court has wrongly awarded the sentence of life imprisonment because the normal sentence in a murder case is death and no reason has been assigned by the learned Judge of the Shariat Court, that is why he has awarded the sentence of fourteen years to the convict-appellant. He submitted that the prosecution has proved its case beyond any doubt, therefore, the sentence awarded to the convict appellant may be enhanced.

8. The learned Additional Advocate-General supported the` arguments advanced by the learned counsel for the complainant.

9. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost ponder to the arguments advanced by the learned counsel for the parties.

10. The prosecution has cited Muhammad Yousaf, Muhammad Khan, Ahmad Khan and Rehmat Khan as eye-witnesses of the occurrence in the charge-sheet. The complainant Muhammad Yousaf, father of deceased, appeared before the Court and deposed that on 15-4-2003 he sent Muhammad Yunas for calling Muhammad Khan because he wanted to talk with him. After giving message to Muhammad Khan, Yunus was coming back towards his house while Tariq Mehmood was sitting in the street. When Muhammad Yunus reached in the street, he also came out in the street. Tariq Mehmood fired a bullet from .7 mm rifle on Muhammad Yunus, which hit on his abdomen. He fell down. The complainant, Ahmad Khan, Muhammad Khan and some other people of Mohallah reached there. Tariq Mehmood ran away from the place of occurrence. They brought Muhammad Yunus in the injured condition to the police station, lodged the report and then went to Bhimber Hospital. After sometime Yunus succumbed to the injuries.

11. Muhammad Khan appeared as a witness and deposed that on 15-4-2003 at 12 O' clock of night he was sleeping in his house. Muhammad Yunus came to his house and said that his father, Muhammad Yousaf, is calling him. He asked that why he is calling him upon which Yunus told that he wants to talk regarding the occasion of recitation of whole of Holy Quran (Khatam Sharit). He accompanied him. Muhammad Yunus was walking ahead. When Muhammad Yunus reached near a turn, then Tariq Mehmood fired a bullet from .7 nun rifle, which hit on the abdomen of Muhammad Yunus. He fell down. In the meantime Ahmad Khan, Muhammad Yousaf and some other women and people of Mohallah reached on the place of occurrence. The people of Mohallah caught Tariq Mehmood and we took Yunus to hospital. Muhammad Khan again stated that they brought Yunus to police station and the police referred to him to the hospital.

12. Ahmad Khan also appeared as a witness and deposed that on 15-4-2003 at 12 O' clock of night, he was sitting along with his brother Muhammad Yousaf in his compound. They were talking about the ceremony of recitation of whole of Holy Quran for Khatam Sharif of sister. Muhammad Yousaf sent his son Muhammad Youns for calling Muhammad Khan. Muhammad Yunus went. After sometime they saw Tariq Mehmood going from the front of gate. He was armed with .7 mm rifle. They also came out of the gate and started going behind the accused. The accused fired a bullet upon which he told his brother that the accused has fired. The sound of fire was heard by the people of Mohallah. The brother Muhammad Khan caught Tariq Mehmood, who fired upon Muhammad Yunus which hit on his abdomen. Muhammad Yunus fell down. They left Tariq Mehmood and proceeded towards Muhammad Yunus. Tariq Mehmood ran away. They put Muhammad Yunus on a cot and proceeded towards Bhimber. They came to Police Station Bhimber. They lodged report and then went to hospital.

13. The prosecution did not produce Rehmat Khan, eye-witness. Now the question emerges whether there is complete concordance among the aforesaid eye-witnesses or not? As far the statements of Muhammad Yousaf, Muhammad Khan and Ahmad Khan are_ concerned, there are major contradictions among them. As stated above, according to Muhammad Yousaf, he sent his son Muhammad Yunus for calling Muhammad Khan. Yunus was coming back after calling him and when he reached in a turn of street, Tariq Mehmood fired bullet on his abdomen. According to Ahmad Khan, Muhammad Yousaf sent Muhammad Yunus for calling Muhammad Khan. When Yunus went, after sometime Tariq Mehmood armed with .7 mm rifle also passed from front of his gate. He and Muhammad Yousaf followed him. The convict appellant fired a bullet on Muhammad Yunus. According to Muhammad Yousaf and Muhammad Khan the occurrence took place when Muhammad Yunus was coming back from the house of Muhammad Khan, while according to Ahmad Khan the occurrence took place when Muhammad Yunus was going for calling his uncle. This is a major contradiction. Moreover the story narrated by Ahmad Khan is that he was sitting with his brother Muhammad Yousaf in the compound of his house and his brother sent Muhammad Yunus for calling Muhammad Khan, while Muhammad Yousaf nowhere deposed as such. He did not depose that after departure of Muhammad Yunus the convict-appellant passed from the front of the gate and he and Ahmad Khan also followed him. It is pertinent to note that Muhammad Khan narrated a quite different story. According to him, Muhammad Yunus came to his house and said to him that his father is calling him. Thus it is clear from his statement that Muhammad Yunus came to the house of Muhammad Khan and gave a message of Muhammad Yousaf to him and when he was going back to his house, the incident took place. According to Ahmad Khan while Yunus was going towards the house of his uncle for calling him, the occurrence took place. It is also pertinent to note that according to Muhammad Yousaf, P. W.1, after the occurrence Tariq Mehmood ran away from the place of occurrence, while according to Muhammad Khan, the people of Mohallah caught Tariq Mehmood. Muhammad Yousaf nowhere deposed in his statement that when he sent Muhammad Yunus for calling Muhammad Khan, at that time his other brother Ahmad Khan was also sitting with him in his house. Therefore the story 'narrated by all the three eye-witnesses creates doubt regarding their witnessing of occurrence. It is also amazing that in the village at 12 O' clock of night, Muhammad Yousaf sent .his son for calling Ahmad Khan while in the village mostly the people had gone to sleep at such odd hours of night. Another question which perturbs our mind is that if at all Muhammad Yousaf sent his son at 12 O' clock of night, how Tariq Mehmood was retaining knowledge that Muhammad Yousaf will send his son for calling Muhammad Khan at that time and he was waylaying armed with a .7 mm rifle. The story narrated by all the three eye-witnesses does not inspire confidence. Moreover contradictions between them create reasonable doubt. It would not be out of place to mention here that in the instant case, according to story of prosecution, Muhammad Yousaf sent his son Muhammad Yunus for calling Muhammad Khan, who, according to them, was living in the same village but in the site plane the house of Muhammad Khan was not shown anywhere. In the site plan, the houses of Muhammad Yousaf, Muhammad Altaf and Ahmad Khan were shown. While the house of Muhammad Khan was not shown which was necessary because the occurrence took place when Muhammad Yunus went to house of Muhammad Khan. All the three eye-witnesses are real brother. The story narrated by them does not find corroboration from the post-mortem report. According to Muhammad Yousaf, Ahmad Khan and Muhammad Khan, the convict-appellant fired a bullet from .7 mm rifle which hit on the abdomen of Muhammad Yunus. Thus according to them only one bullet of .7 mm rifle was fired while according to post-mortem report, Muhammad Yunus sustained following two fire-arm injuries:

"(1) Wound an backside of elbow lacerated out of Lt. arm blackening and tattooing present. (2) Entry wound 1.2 c.m. in diameter, rounded in shape. On anterior wall of abdomen just lateral to Umbilicus of Lt. side blackening tattooing present. Edges inverted."

14. There is contradiction between post-mortem report and the story narrated by the eye-witnesses. It stultifies us that, according to eye-witness and the site plan, the occurrence took place at point No.1 in the street but no blood-stained clay or blood was recovered from the place of occurrence. If at all the occurrence took place at point No.1 then why the blood or blood-stained clay was not recovered from this place. It is to be noted that when Asar Hayat. Investigating Officer, appeared as a witness, he deposed that it is correct that no blood-stained clay was found on the place of occurrence. When the learned counsel for the complainant, Ch. Lal Hussain, was confronted to explain that why the blood or blood-stained clay was not recovered from the place of occurrence, his answer was not satisfactory. He stated that it was a case of internal bleeding, therefore, no blood oozed from the injuries. Upon this, the learned counsel was confronted that according to opinion of doctor, the death occurred due to a lot of bleeding. The learned counsel was confronted with the report of the doctor which is as under:

"Due to injury to abdominal wall and visceral blood vessels, there is lot of bleeding, lead to hyporelaemic shock and death. The injury is due to fire-arm (bullet). The 3 pieces of bullet, 2 from abdominal cavity and one from Rt. Buttock just below the skin, handed over to police for sending to laboratory to find out the kind of weapon used." The learned counsel was also confronted with the statement of Dr. Zafar Iqbal who deposed as under:

Upon this, the learned counsel could not afford any reasonable explanation.

15. Now the question emerges that whey the blood or blood-stained clay was not recovered from the place of occurrence or if at all it was recovered, they why it was suppressed? It also could not be ignored at the same time that in the instant case no inquest report or injury sheet was planed before the Court along with the challan. The learned counsel for the complainant was also confronted that why the inquest report and injury sheet of the deceased prepared by the police were not placed on record. He simply stated that it shall not make any difference, but the question which perturbs our mind is that according to eye-witnesses the deceased sustained only one bullet injury, while according to medical report, he sustained two fire-arm injuries. According to the report of doctor, the death occurred due to a lot of bleeding but no blood or blood-stained clay was recovered from the place of occurrence. These factors create doubt regarding place of occurrence and the manner of occurrence.

16. It is important to note that in the instant case on the very first day, a counter version was pleaded by the convict-appellant. According to his version, he had gone along with his wife and children to the house of Rehmat Khan for watching movie of marriage ceremony. When he came out of house, Muhammad Khan and Muhammad Yunus stopped him. They opened attack on him. Muhammad Yunus inflicted injury with the blunt side of hatchet on his head. His son, who was sitting on his shoulders, fell down and started weeping. In the meantime Muhammad Khan and Muhammad Yunus caught hold of him. Muhammad Khan fired two bullets which instead of him hit Muhammad Yunus. This version was adopted by the convict-appellant from the very beginning. He moved an application before the police. His injury sheet was prepared on 16-4-2003 which is also on the record at page

96. He was referred to doctor who examined him and found injuries. The medical report is also on the backside of aforesaid page. Both the doctors, Aatif Anwar and Muhammad Jahangir Akbar examined him. They appear as witnesses and their statements were recorded. The counter-version was brought into the notice of the Investigating Officer through an application. Asar Hayat, Inspector Investigation, P.W.12, when appeared before the Court, he deposed as under:--‑ This application is also on the record which pertains to aforesaid counter-version the Investigating Officer further deposed that on 16th, the accused was injured. He referred him to the hospital, thus, it was also admitted by him that the accused was injured on the day of occurrence. He further deposed as under:--‑

17. Rehmat Khan, who was an important eye-witness in the instant case, was not produced by the prosecution in support of its version, which clearly means that the prosecution was of the view that he will not support the version of the prosecution. This witness stated before the Investigating Officer that the accused along with his family came to his house for watching the movie of marriage ceremony. When they were watching movie, the deceased saw them from the roof of his house. The Investigating Officer also stated that it came into his investigation that when the accused was going from the house of Rehmat Khan, then the occurrence took place and at the time of occurrence, the accused was along with his wife and children. In these circumstances it was enjoined upon the Investigating agency to probe into the counter-version. If at all the accused would have an intention to commit murder or he would have gone for commission of murder then why he would have gone along with his wife and children. The statement of Investigating Officer clearly lends support to the version of the convict-appellant. It was legal obligation of the Investigating Officer to consider and probe into the version narrated by Rehmat Khan, eye-witness. It is most unfortunate that he has neither considered, nor given any attention towards the version of the convict-appellant. Akhlaque Hussain, Sub-Inspector, P.W.13, also appeared as a witness. He has also conducted investigation. In the cross-examination he also deposed that it is correct that the accused at the time of his arrest gave a statement that he along with his wife and children came to house of Rehmat Khan for watching movie of marriage ceremony and after watching movie, when he was going back, then Muhammad Khan and Muhammad Yunus stopped them. They gave beating to him and his wife. He further stated that it is correct that the accused told that the bullets fired by Muhammad Khan hit the deceased. For having proper perception, we would like to reproduce the aforesaid portion of the statement of this witness which is as under:--‑

18. It is pertinent to note that in the instant case a counter-version was adopted by the convict-appellant from the very beginning. According to him, the attack was opened by the complainant party, when he was going back to his house after watching movie from the house of Rehman Khan. On 16-4-2003 he was referred to hospital. The doctor found injuries on his person. Moreover he took this version before Asar Hayat, Investigating Inspector and Akhlaque Ahmad, Sub-Inspector. Both the police officials stated before the Court that this version was adopted by him, but they did not probe into the matter. They neither declared his version false, nor gave any finding about this version. It flabbergasts us that when the convict-appellant had stated his version before the police then why the police did not probe into the counter-version. It clearly reveals that the police conducted investigation ex parte. The police was bent upon to challan the convict-appellant irrespective of the fact whether he committed the offence or not or the police was not going to consider any other version. It is well-settled principle of law that where a version has been adopted by an accused person and when it is not possible for the Court to hold that the version given by the accused was not absolutely false, then the benefit of doubt goes to the accused. This view finds support from a case titled Noor Muhammad v. The State 1993 SCMR 208 wherein at page 211 it has been observed as under: --‑ "After hearing both the side it is not possible for us to hold that the version given by the accused is absolutely false. The result in such a situation would be that the benefit of reasonable doubt would go to appellant."

19. It would not be out of place to mention here that where the appellate Court, on the basis of scrutiny of evidence, arrived at a conclusion that the prosecution version and the defence version were to be placed side by side and the Court had to judge which of them was plausible. If both the versions were possible, then the one favourable to the accused is to .be preferred. This view finds support from a case reported as Muhammad Sultan v. Muhammad Aslam and another 1988 SCMR 857 wherein at page 858 it has been observed as under:-‑ " The appellate Court on the basis of this scrutiny of evidence correctly arrived at the conclusion that it was a case in which the prosecution version and the defence version were to be placed side by side and then the Court had to judge which of them was more plausible and if both such versions were possible, the one favourable to the accused was to be preferred.

20. It is a celebrated principle of law that when there are two conflicting versions before the Court; one raised by the prosecution and the other by the defence and both are probable, then the one favouring the defence is to be preferred. This view finds support from a case reported as Ghulam Hussain v. The State PLD 1994 SC 31 wherein at page 35 it has been observed as under:-‑ " Needless to emphasise that when there are two conflicting versions for consideration before the Court, the one agitated by the prosecution and the other by the defence and both are probable, the one favouring the defence is to be preferred, more so when it gets corroboration from the circumstantial evidence available in the case."

21. It is well-settled principle of law that while appreciating the evidence if the Court finds that there are two versions, then it shall adjudge both the versions in juxtaposition to ensure which one is more plausible and near to the truth on the basis of evidence brought on record subject to qualification that onus of proof always remains on the prosecution and benefit of doubt, if any, always goes to the accused. This view finds support from a case reported as The State v. Muhammad Abid and 4 others PLD 1997 Lahore 144 wherein at page 149 it has been observed as under:-‑ "The salutary principle of law for the just decision of the case of two versions is this that both the versions are put in juxtaposition, then the Court has to see which version is more probable and near to the truth on the basis of evidence brought on the record, of course subject to the qualification, that onus of proof always remains on the prosecution, if any doubt occurs in the prosecution version that doubt must be resolved in favour of the accused."

22. In a case of two versions of the occurrence, both the versions have to be kept in juxtaposition and the one favourable to defence is to be preferred, if the same is supported from the admitted facts and circumstances of the case. This view finds support from a case reported as Muhammad. Younas v. The State 1992 SCMR 1592 wherein at page 1596 it has been observed as under:-‑ " ..There are two versions of the occurrence, one alleged by the prosecution and the other advanced by the appellant raising the plea of self-defence. It is by now well-established that in a situation like the one in hand, both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred to, if it gets some support from the admitted facts and circumstances of the case and appeals to common sense." This view further finds support from another case titled Furqan Hyder v. The State PLJ 1984 Cr.C. (Karachi) 316 wherein at page 320 it has been held as under:-‑ "... In view of this, there are two versions of the incident brought on record and consequently as held by Honourable Supreme Court in case reported in PLD1959 SC 480, the version in favour of the appellant ought to be accepted."

23. In the instant case there are two versions; one narrated by the prosecution and the other by the defence. The defence took the other version from the very beginning of the case. As stated above, the convict-appellant moved an application before the Superintendent of Police and his version was even admitted by the police officials in their statements but despite this, they did not probe into the version of defence, while under law it was the duty of the police to consider both the versions. It was obligatory for the lower Courts to put both the versions in juxtaposition and then ascertain which version is true but nothing like such was done. It is to be noted that the version of defence was not declared false either by the police or by the lower Courts rather the same finds support from the statements of the police officials. No reason was given that why the defence version was not considered by the police or the lower Courts. Rehmat Khan, who was an important independent eye-witness, was not produced before the Court. The convict-appellant sustained injuries and was examined by the doctor, who was produced before the Court. Thus, these factors create doubt regarding version of the prosecution. Even otherwise the version of prosecution is not proved by evidence of prosecution as stated in the earlier part of this judgment.

24. It is also quite amazing that in the instant case the deceased who was murdered, according to prosecution, was Muhammad Yunus son of Muhammad Yousaf, while the post-mortem report contains the name of Muhammad Yunus son of Atta Muhammad. The learned counsel for the complainant stated that as such has been mentioned inadvertently but there is nothing like such on the record on the basis of which it could be said that it was inadvertently mentioned so by the doctor. The doctor appeared as a witness but it was not clarified by him. If at all any mistake was committed by the doctor, it was the duty of the prosecution to rectify it, therefore, the, story of prosecution is not free from doubt.

25. It would not be out of place to mention here that according to post-mortem report both the injuries contain blackening and tattooing which means that the injuries were inflicted from a very close range. The doctor has also stated as under:-‑ Now from the statement of doctor and post-mortem report, the version of prosecution is that the bullet was fired from a distance of three feet while according to site plan the bullet was fired from point No.2 which was at a distance of 20 feet from point No. 1.

26. The other set of evidence is recovery of .7 mm rifle which along with bullets was sent to Forensic Science Laboratory Lahore. According to report of Fire-arm Expert, these bullets were not fired from this rifle. In this way, the story narrated by the eye-witnesses did not find corroboration from the report of Fire-arm Expert. It is admitted fact that the convict-appellant was injured at the time of his arrest. He also moved an application before the police. His version was not investigated by the police rather it was not even looked into by the police. Rehmat Khan, the most important independent eye-witnesses, was not produced as a witness by the prosecution. According to the Investigating Officer, this witness supported the counter version before him, but despite this he did not consider the version of defence. The prosecution has miserably failed to prove the case against the convict-appellant beyond any doubt.

27. The nutshell of the above discussion is that the appeal filed by the convict-appellant is accepted and the sentence awarded to him by the Shariat Court and the trial Court is set aside. He shall be set at liberty immediately provided he is not required in any other case. The appeal filed by the complainant, having no merits, is hereby dismissed. H.B.T./19/SC(AJ&K) Order accordingly. ***