JUDGMENT MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.1746 of 2005 (Muhammad Arif and others v. The State) and Murder Reference No.773 of 2005 sent by the learned trial Court, for Confirmation or otherwise, of the sentence of death awarded to both the appellants, as both these matters have arisen out of the same judgment dated 20-10-2005 passed by the learned Additional Sessions Judge, Faisalabad, whereby, appellants were convicted for the murder of Ashfaq (deceased) and sentenced to death. They were also directed to pay a compensation of Rs.1,00,000 (Rupees one lac only) each to the legal heirs of the deceased in default whereof to further undergo six months' S.I. Each.
2. Brief facts of the case, as given by P.W.6. Mst.Surriya Bibi (complainant) in the F.I.R. (Exh.PA/1) are that about 9/10 years ago, marriage of complainant's son Ashfaq (deceased) took place with Mst.
Shazia of Chak No.73-JB. Her son Ashfaq (deceased) was residing in the village of his in-laws for the last about four years. Muhammad Arif was brother-in-law (Sala) of her said son who took Rs.7,70,000 as loan from Muhammad Arif (appellant) but he was not returning it back due to which their relations were not cordial. As per contents of the F.I.R., on 4-12-2004, Mst.Surriya Bibi (complainant) along with Shabbir and Ibrar Hussain went to Mauza Koluwala to meet her said son.
On the said day, she was talking with her deceased son and others on the upper storey of the house, when, at about 5-30 p.m., Abid, who was driver of wagon of Ashfaq (deceased), came to the village to meet her son Ashfaq and gave a siren of wagon while standing in the street in front of the house of her son. Her son Ashfaq came down in the street. In the meanwhile, both the appellants along with an unknown person, while armed with firearms, reached there Muhammad Arif (appellant) fired a shot with.30 bore pistol which stamped on the front of chest of her son Ashfaq.
Second shot fired by Ghulam Murtaza (appellant) landed on his right flank which was followed by indiscriminate firing by the accused persons which fires hit on different parts of bodies of Ashfaq (deceased) and Abid (driver). Ashfaq (deceased) tried to save his life but he fell down at some distance and breathed his last there and then Abid (driver) was taken to Allied Hospital, Faisalabad. The accused decamped from the spot while making aerial firing. As per F.I.R., the occurrence was witnessed by the complainant, Ibrar Hussain and Muhammad Shabbir. The motive stated in the F.I.R. Was that Muhammad Arif (appellant) took money as a loan from Ashfaq (deceased) who was not returning the same due to which a dispute arose between them. It was for the said reason that the appellants along with an unknown person killed Ashfaq (deceased) and caused injuries to Abid (driver).
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellants as required under section 265-C of the Code of Criminal Procedure, charge was framed, to which, the appellants pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as 9 witnesses during the trial. The appellants were examined under section 342, Cr.P.C. They opted not to depose on Oath as required under section 340(2), Cr.P.C.. Mst.Shazia Bibi and Waris were produced by the defence as DW-1 and DW-2. In an answer to the question "why this case against you and why the P. Was. Have deposed against you", Muhammad Arif (appellant), in his statement recorded under section 342, Cr.P.C., stated as under:-- "The P.Was. Are related inter se and inimical towards me and had deposed falsely against me. The P.Was. Are resident of Gujranwala and were not present at the place of occurrence and at the time of occurrence. They were summoned by the police from Gujranwala to become complainant and P.Was. In fact, the deceased had enmity of murder at Sialkot and his unknown enemies assaulted upon the deceased. The deceased and Abid injured P.W. Who was given up by the prosecution, were injured in the dark of late evening by the unknown assailants who could not be identified at the place of occurrence. The complainant had grudge against me, therefore, she involved me in this case falsely. All the people of the locality told the police about the real facts but I.O. Dishonestly and in connivance with the complainant party did not bring the real fact on record. Abid P.W. Was also not supporting the prosecution version, therefore, he was not produced by the prosecution and prosecution withheld important piece of evidence".
Ghulam Murtaza (appellant), deposed as under:-- "The P.Was. Are related inter se and had deposed falsely against me. The P.Was. Are resident of Gujranwala and were not present at the place of occurrence and at the time of occurrence. They were summoned by the police from Gujranwala to become complainant and P.Was. In fact the deceased had enmity of murder at Sialkot and his unknown enemies assaulted upon the deceased. The deceased and Abid injured P.W., who was given up by the prosecution, were injured in the dark of late evening by the unknown assailants, who could not be identified at the place of occurrence. All the people of the locality told the police about the real facts but Investigating Officer dishonestly and in connivance with the complainant party did not bring the real facts on record. Abid P.W. Had, also not supported the prosecution version, therefore, he was not produced by the prosecution and withheld important piece of evidence. My father is retired police official and the Investigating Officer. Had grudge with my father during his service and due to this, complainant involved in, this case with the connivance of Investigating Officer".
However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellants as mentioned above.
5. Learned counsel for the appellants, in support of this appeal, contends that actually this occurrence was not witnessed by P.W.6. Mst. Surriya Bibi and P.W.7. Ibrar Hussain who, admittedly, are not residents of the area which the occurrence took place because the place of occurrence is situated in Chak No.73-JB-Jhapal, Police Station Thikriwala, District Faisalabad whereas both the eye-witnesses are residents of Mauza Kaluwala, Tehsil Naushehra, District Gujranwala which is at a distance of about 150 kilometers from the place of occurrence; that even the complainant, while appearing as P.W.6., has admitted that it took about 7/8 hours from Naushehra to reach the place of occurrence; that as per prosecution's on case, both the eye-witnesses were present at the place of occurrence per chance and the reason given by them for their presence at the place of occurrence at the relevant time is neither plausible nor convincing; that as per the complainant, the occurrence in this case took place at about 5-30 p.m., Police Station Thikriwala is situated only at a distance of just 2 kilometers from the place of occurrence but the matter was reported to the police at about 8-00 p.m. With an inordinate and unexplained delay of about two and a half hours after the occurrence; that the postmortem examination on the dead body of the deceased'was conducted on the next day i.e. 6-12-2004 and the doctor, in his postmortem report (Exh.PE), has stated that rigor mortis was fully developed on the body at that time; that even as per P.W.9.
Muhammad Riaz S.-I./Investigating Officer, dead body of the deceased was dispatched to the mortuary from the place of occurrence on the same day which fact also stood mentioned in the Inquest Report (Exh.PD); that even in the Inquest Report no time of death has been mentioned and similarly the prosecution has not given any time of conducting postmortem examination on the body of deceased; that in the F.I.R. It is mentioned that the complainant of the case was present at the place of occurrence along with Ibrar Hussain and. Muhammad Shabbir and went to the police station for reporting the matter along with the said Shabbir Ahmad but in the Inquest Report neither name of the said Ibrar Hussain nor Shabbir Ahmad are mentioned; that it is the case of the prosecution that in the same occurrence, one Abid was also injured at the hands of the appellants and P.W.9 Muhammad Riaz S.-I./Investigating Officer has stated that he recorded his statement under section 161, Cr.P.C. But the said Abid was never produced before the learned trial Court and even no evidence regarding his injury was brought on record rather the said Abid was given up by the prosecution being unnecessary; that the said Abid was the most important witness of the occurrence, therefore, on account of withholding of his evidence, an adverse inference is to be drawn against the prosecution in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984; that eyen otherwise, P.W.6. Mst.Surriya Bibi while appearing before the Court has made dishonest improvements justifying her presence at the spot at the time of occurrence which is manifest from her cross-examination and in this regard she was duly confronted with her previous statement; that there is contradiction between the ocular account and the medical evidence because it is case of the prosecution that the shot fired by the appellant Arif hit on the chest of the deceased but as per postmortem examination report (Exh.PE) it is Injury No.4 which injury, in fact, is an exit wound; that no recovery was effected from Ghulam Murtaza (appellant) whereas recovery of.30 bore pistol at the instance of Muhammad Arif (appellant) is of no avail to the prosecution for the reasons that there is no report of the Forensic Science Laboratory in this regard and P.W.9.
Muhammad Riaz S.-I./Investigating Officer has admitted that he did not send this weapon to the laboratory for examination coupled with the fact that no crime empty was taken into possession from the spot to connect the said weapon with the alleged commission of the crime; that the prosecution has miserably failed to prove motive because no evidence has been brought on record to substantiate the fact that there was a money dispute between Muhammad Arif (appellant) and Ashfaq (deceased); that P.W.6 Mst.Surriya Bibi, while appearing before the Court, has denied that her husband was mrudered and a case was registered; that notwithstanding the fact that complainant's deceased son Ashfaq was involved in a murder/dacoity case but while appearing before the Court, P.W.6. Mst.Surriya Bibi has denied the said factum which is very much clear from (Exh.DB) wherein Ashfaq (deceased) was arrayed as an accused of offence under sections 302/395, P.P.C., that the defence evidence furnished by DW-1 and DW-2, who are residents of the same area where the occurrence took place, is more probable and convincing as compared to the prosecution case; that the case of the prosecution is of doubtful nature; that the prosecution has failed to prove its case against the appellants beyond, any shadow of doubt and that the appellants are entitled to acquittal. In support of the above Submissions, learned counsel for the appellants has placed reliance on Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127) Muhammad Khan and another v. The State (1999 SCM R 1220), Muhammad Akram v. The State (2009 SCM R 230), Ghulam. Sikandar and another v. Mamrez Khan and others (PLD 1985 Supreme Court 11), Khalid Javed and another v. The State (2003 SCM R 1419), Noor Muhammad v.
The State and another (2010 SCM R 97), Muhammad Rafique and others v. The State and others (2010 SCM R 385), Muhammad Ibrahim v. Ahmed Ali and others (2010 SCM R 637), Nadeem alias Nanha alias Billa Sher v. The State (2010 SCM R 949) and Qurban. Hussain alias Ashiq v. The State (2010 SCM R 1592).
6. On the other hand, the learned Deputy Prosecutor-General for the State, while vehemently opposing this appeal, contends that the appellants are named in the F.I.R. With specific roles; that, in order to prove its case, the natural eye-witness account has been furnished by the prosecution which inspires confidence and despite cross-examination the defence could shake nothing from the testimony of the witnesses; that the P.Was. Have no emnity with the appellants to falsely depose against them during the trial; that the ocular account in this case is supported by the medical evidence and the evidence of recovery of weapon of offence; that, even otherwise, in such like cases substitution is a rare phenomenon and no reason has been offered by the appellants for their false implication in this case; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that the appeal filed by the appellants against their conviction and sentence be dismissed.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with their able assistance.
8. Occurrence in this case took place on 5-12-2004 at about 5-30 p.m., the matter was reported to the police by P.W.6. Mst.Surriya Bibi at about 8-00 p.m. Through Fard Bayan (Exh.PA) at Adda Thikriwala, the formal F.I.R. Was registered on the same day at about 8-10 p.m. While the distance between the place of occurrence and the Police Station was about 2 kilometers. The first point to be determined by this Court is whether the matter was promptly reported to the police or not? It is case of the complainant that after the incident, she, along with Shabbir Ahmad, went to the Police Station to report the matter when she met Iftikhar Ahmad S.-I. At Adda Thikriwala at about 8-00 p.m. Although the police station is just at a distance of about 2 kilometers from the place of occurrence but the matter was reported to the police with a delay of about two and a half hours coupled with the fact that the postmortem examination on the dead body of the deceased was conducted by P.W.3. Dr.Zafar-ul-Hassan Shah on the next day of occurrence i.e. 6-12-2004 and even no time of conducting the same was mentioned in the postmortem examination report (Exh.PE) although he has admitted that it was conducted after 12 to 24 hours; of the death of the deceased. Similarly, P.W.9. Muhammad Riaz S.-I./Investigating Officer has stated that he dispatched the dead body to the mortuary but surprisingly according to the opinion of P.W.3 Dr.Zafar-ul-Hassan Shah, who conducted postmortem examination on the body of deceased, rigor mortis was fully developed, therefore, preliminary inquiries, deliberations and consultations on the part of the complainant cannot be ruled out, prior to the registration of the F.I.R.
9. The ocular account in this case was furnished by P.W.6 Mst.Surriya Bibi and P.W.7 Ibrar Hussain.
The occurrence in this case took place within the area of Chak No.73-JB-Jhapal, Police Station Thikriwala, District Faisalabad while both the above mentioned eye-witnesses are residents of Mauza Kaluwala, Tehsil Naushehra, District Gujranwala. While appearing as P.W.6., the complainant has admitted that it took about 7/8 hours from Naushehra to reach the place of occurrence. In the F.I.R., P.W.6 Mst.Surriya Bibi has not given any plausible and convincing explanation for her presence at the place of occurrence although while appearing before the Court, she has made an abortive attempt to justify her presence at the spot in the following manner:-- "I know the accused present in the Court. Ghulam Murtaza was conductor on a wagon owned by Muhammad Arif, accused. My son Muhammad Ashfaq was married with the sister of accused namely Shazia for the last about it said 10 years. My sa son shifted to the house of accused persons, about 5 years prior to the occurrence. Arif accused misappropriated Rs.7,70,000 of my son Ashfaq, deceased which was taken as a loan. After this, Arif, accused and my son Ashfaq remained happy for some time. My son Ashfaq and accused Arif purchased car and wagon. My son Ashfaq purchased car froth his on pocket. 4 months prior to the occurrence, dispute arose between my son and Arif accused over money. On 4-12-2004, I along with Muhammad Shabbir P.W. And Ibrar P.W. Attracted the house of Ashfaq my son in connection with said dispute. On the next day about 5-30 p.m. I along with Ibrar and Shabbir P.Was. And my deceased son were sitting on the roof of the house of the deceased. Again said, we were sitting in the room. Subsequent to this, our van driven by our driver Abid reached in front of house of Ashfaq and gave horn. After hearing the horn, my son Ashfaq came down and reached near the wagon and we i.e. I, Shabbir and Ibrar P.Was.
Proceeded to the gallery of roof. In the meantime, Arif and Murtaza and one unknown person with muffled face came out from the house. Both Arif and Murtaza armed with.30 bore pistols. Arif accused made fire which hit at the chest of my son Ashfaq. Subsequent to this, Ghulam Murtaza caused fire with his pistol which hit on the right flank of my said son. After receiving the fires, my deceased son moved forward a few steps and followed by both the accused while both the accused were making firing with their respective weapons, which causes a number of injuries on the person of deceased. Abid driver was also injured by Arif accused and Ghulam Murtaza accused. My deceased son died at the spot due to the fires of the accused present in the court at a some distance. Both the accused fled away while making firing. The occurrence was seen by me and Ibrar and Shabbir P.Was. While standing in the gallery in the house of Ashfaq deceased. My son was killed due to money dispute which was taken by the accused Arif. I along with Shabbir moved to the police while Ibrar P.W. Was left with the dead body. We met the police at Adda Thikriwala. I made statement Exh.PA to the Police which was read over to me and I thumb marked the same for the token of its correctness".
10. P.W.6. Mst.Surriya Bibi was confronted with her previous statement and it was brought on record that she made improvements to justify her presence at the spot at the time of occurrence. In her cross-examination, she stated as under:- "I had not recorded in my statement before the police that my son Ashfaq deceased and accused Arif purchased car and wagon. I did not state before the police that my son Ashfaq purchased car from his on pocket. I did not state before the police that four months prior to the occurrence a dispute arose between my son and Arif accused over money. I did not state before the police that I along with Shabbir P.W. And Ibrar P.W. Attracted to the house of my son in connection with said dispute".
11. 'Similarly, P.W.7. Ibrar Hussain has also not given any plausible explanation for his presence at the spot. He is also not resident of the place of occurrence and is a resident of the same Mauza where the complainant resides. His plantation in the case as an eye-witnesses can also not be C ruled out. Therefore, in the given circumstances of the case, presence of both these witnesses at the spot at the relevant time of occurrence, becomes doubtful and in our view their testimony does not inspire confidence. In this regard, reference is made to the case of Nadeem alias. Nanha alias Billa Sher v. The State (2010 SCM R 949), wherein at page g53, the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:-- "The complainant P.W.4 and Muhammad Afzaal P.W.5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."
The question of placing reliance on the materially improved statement of a witness came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCM R 385), wherein, at page 396, the learned Apex Court of the country, has been pleased to observe as under: -- "... This Court in the case of Saeed Muhammad Shah v. State (1993 SCM R 550), observed that if a witness improves his statement on material aspects of case then such improvement' is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State (2003 SCM R 1419), while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence".
12. Another important aspect of the case is that it is the case of the prosecution that one Abid (Driver) also received firearm injury at the hands of the appellants. Even as per P.W.9 Muhammad Riaz S.-I./Investigating Officer, on 6-12-2004, he reached Allied Hospital, Faisalabad, and recorded statement of the said Abid under section 161, Cr.P.0. Who was also got medically examined but he was never produced by the prosecution before the learned trial Court. Even there is nothing on the record regarding his injuries. He was given up being unnecessary. He was the most important witness of the occurrence but his evidence was withheld by the prosecution, therefore, an adverse inference can safely be drawn against the prosecution in view of Article 129(g) of the Qanun-e- Shahadat Order, 1984. In this context, reference is given to the case of Muhammad Rafique, and others v. The State and others (2010 SCM R 385), wherein, at page 400, the learned Apex Court of the country, has been pleased to observe as under:- ".......... It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 can fairly be drawn that if P.W. Amir Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution.... ".
13. There is yet another important aspect of the case. As per F.I.R. Lodged by P.W.6 Mst.Surriya Bibi and even before the learned trial Court; it is case of both the eye-witnesses i.e. P.W.6 Mst.Surriya Bibi and P.W.7 Ibrar Hussain that the shot fired by Muhammad Arif (appellant) hit on the chest of Ashfaq (deceased) while the shot fired by Ghulam Murtaza (appellant) caused injury on his right flank. Before proceeding with the case any further, it is imperative to quote injuries on the person of the deceased, noted by P.W.3 Dr.Zafar-ul-Hassan Shah who conducted postmortem examination on the body of deceased, which are as under:-- "(1) 1-1/2 cm x 1 cm firearm entrance wound on left lateral abdomen, 7 cm from anterior superior iliac spine, 8 cm from anterior middle line, 30 cm from left armpit.
(2) 2 cm x 1 cm firearm exit wound on left lateral abdomen 10 cm from posterior midline 22 cm below tip of scapula.
Injuries No.1 and 2 are 8 cm apart. Injury No.1 is entry and injury No.2 is exit.
(3) 1 cm x 1 cm firearm entrance wound on left shoulder interiorly 13 cm from neck, 22 cm from left nipple.
1-1/2 x 1-1/2 cm firearm wound on anterior chest with averted margin 3 cm left from anterior midline 13 cm from left nipple.
'(5) 5 cm long, 2 cm width firearm lacerated kissing wound upto muscle above left scapula 9 cm from Injury Nos.3, 7 cm from neck, 10 cm from posterior midline.
(6) 1 cm x 1 cm firearm entrance wound on the base of left index finger. 4 cm from thumb.
(7) 5 cm x 2-1/2 cm firearm exit wound on left wrist joint. Note:
6. Entrance would, 7 exist wound.
(8) 1 cm x 1 cm firearm entrance wound on right lateral abdomen 15 cm above right anterior superior, iliac spine 22 cm from posterior midline 28 cm from right armpit.
(9) wound on left anterior abdomen 16 1-1/2 x 1-1/2 cm firearm exit cm left from umbilicus, 8 cm from lateral midline, 7 cm from left anterior, superior iliac spine. Note: Wound No.8 is entry and Wound. No.9 is exit. Bullet as traversed mesenteric vessels".
(10) 3 cm x 3 cm skin deep contused wound on right heal".
14. As far as injury on the chest of Ashfaq (deceased) is concerned, it has been attributed to Muhammad Arif (appellant) but we have noted that according to the Postmortem Report (Exh.PE) and Pictorial Diagram (Exh.PE/1), the injury on the chest is Injury No.4 which is an exit wound, therefore, the ocular account in this case is not exactly in line with the medical evidence which is also yet another factor against the prosecution.
15. So far as recovery of weapon of offence i.e..30 bore pistol (P4) at the instance of Muhammad Arif (appellant), which was taken into possession through memo Exh.PH is concerned, it is the case of the prosecution that both the appellants and an unknown person made firing at the deceased but we have noted that no crime empty was taken into possession from the spot, as such, the recovery of said weapon of offence is of no avail to the prosecution which was even not sent to the Forensic Science Laboratory, for expert opinion.
16. Apart from above, it is the case of P.W.6 Mst Surriya Bibi that her deceased son received fire shot at Point 2 mentioned in the Site Plan (Exh.PF) and fell down at Point 5 but according to the Draftsman, who appeared as Aurangzeb (P.W.4.) Point 5 is not visible from Point 4 where P.W.6 claims that she was standing.
17. Now we would like to take up the motive part of 'the prosecution case. This Court' has noted that no convincing evidence has been brought on record by the prosecution regarding motive of the occurrence. Even we are unable to understand as to under what circumstances, deceased Ashfaq Was living as "Ghar Damaad" and under what circumstances he gave such a big amount of Rs.7,70,000 to his "Sala" Muhammad Arif (appellant). The prosecution evidence in this regard is silent, so, in our view, the motive is not prayed. In this regard we sought guidance from the case of Noor Muhammad v. The State and another (2010 SCM R 97), wherein, at page 101, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- "... Thus the prosecution has failed prove the motive. It has been held in the case Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but not proved then the of evidence required to be scrutinized with great caution. In the case ocular Hakim All v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish, motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629), it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story".
(9) P.W.6 Mst. Surriya Bibi has categorically denied the suggestion that her son Ashfaq(deceased) was involved in any murder/dacoity case ' but the fact remains that as per Exh.DB, Ashfaq (10)
(deceased) was involved in case F.I.R. No.265 dated 6-5-2004, under sections 302/395, P.P.C., Police Station City Daska, Sialkot.
(6) The over all effect of the above discussion is that the prosecution case against the appellants is doubtful in nature (7) and it is unsafe to maintain conviction on the basis of such type of evidence because (8) it is bounden duty of the prosecution to H prove its case against the accused beyond any shadow of doubt and the prosecution has to stand on its on legs but in the case in hand the prosecution has failed to discharge the said onus. It is an axiomatic and universally recognized principle of law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. At page 1228 of the judgment reported as Muhammad. Khan and another v. The State (1999 SCM R 1220), the August Supreme Court of 'Pakistan, has laid down the following principle:-- "15. It is an axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been molded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined -in its correct perspective".
It is also settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCM R 230), wherein, at page 236, the Hon' ble Supreme Court of Pakistan, 'held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit there must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not, necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but a -a matter of right".
(emphasis supplied)
In Ayub Masih v. The State (PLD 2002 Supreme Court 1048), at page 1056, while quoting a saying of the Holy Prophet (P.B.U.H.) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court has been pleased to observe as under:-- ".....It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, H `it is better that ten guilty persons be acquitted rather than one innocent person be convicted'. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that 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".
(emphasis supplied)
20. After considering all the circumstances, this Court is of the I considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellants are acquitted from the charge by extending them the benefit of doubt. They are behind the bars and shall be released forthwith if not required to be detained in any other case.