Muhammad Anwaar-ul-Haq, J.--Muhammad Ishfaq, lqbal ssain and Mureed Hussain (appellants in Criminal Appeal No, 45 of 07), and Imtiaz Hussain, Iqbal s/o Bagh All and Mukhtar Shahzad espondents No, 1 to 3 in Criminal Appeal No, 74 of 2007) were tried in e case F.I.R. No, 439/2003 dated 26.11.2003, registered at Police tion Basti Malook District Multan in respect of offence under ctions 302, 148, 149, PPC. After conclusion of the trial, learned trial urt vide its judgment dated 31.01.2007 has convicted and sentenced e appellants Muhammad Ishfaq, lqbal Hussain and Mureed Hussain under:-- Ishfaq:
(i) Death sentence under Section 302(b), PPC as Ta'zir' for committing the murder of Sher Muhammad deceased with a compensation of Rs,50,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I.
(ii) Imprisonment for Life as `Ta'zir' under Section 302(b)/149, PPC for committing the murder of Mushtaq alias Kala deceased with a compensation of Rs,50,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I.
(iii)Two Years R.I, under Sections 148/149, PPC with a fine of Rs,5000/- and in default of payment of fine to further undergo six months S.I. benefit of Section 382-B, Cr.P.C. has been extended to the appellant. lqbal & Mureed Hussain:
(i) Imprisonment for Life each under Section 302(b), PPC as `Ta'zir' for the murder of Sher Muhammad deceased with a compensation of Rs,25,000/- each under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to further undergo six monthsS.I. each.
(ii)Imprisonment for Life each under Sections 302(b)/149, PPC as 'Ta'zir' for the murder of Mushtaq alias Kala deceased with a compensation of Rs,25,000/- each under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I. each.
(ii) Two Years R.I, each under Sections 148/149, PPC with a, fine of Rs,5000/- each and in default of payment of fine to further undergo six months S.I. each.
Both the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. has been extended to appellants.
Whereas Accused/Respondents No, 1 to 3 in Criminal Appeal No, 74 of 2007 namely Imtiaz Hussain, Iqbal s/o Bagh Ali and Mukhtar Shahzad have been acquitted from the charges.
Murder Reference No, 279 of 2007 for confirmation or otherwise of death sentence awarded to appellant Ishfaq and Criminal Appeal No, 74 of 2007 filed by the complainant against acquittal of accused Imtiaz Hussain, Iqbal and Mukhtar Shahzad as well as Criminal Revision No, 57 of 2007 for enhancement of sentence awarded to Mureed Hussain and Iqbal Hussain shall also be disposed of through this Single judgment.
2. The F.I.R. (Ex.PF/1) was registered on the statement (Ex.PF) of the complainant Muhammad Iqbal (PW-12) recorded on 26.11.2003 at 7:25 a.m. by Ijaz Akram, S/I/S.H.O. (PW-16). According to the statement (Ex.PF), on 26.11.2003 at about 6:30 a.m. the complainant was present in the house of his father-in-law namely Sher Muhammad situated at Chah Budhanwala on the eve of `Eid' and Muhammad Shahzad (PW-13) alongwith his son Mushtaq alias Kala had also come there last evening to give `Eidi' to his daughters Mst. Kausar Bibi and Mst. Iqbal Mai (daughters-in-law of Sher Muhammad); at about 6:30 a.m. Mushtaq alias Kala went towards the cattle shed to wash his hands and face by a hand pump and at that time on report of firing the complainant, Shahbaz and Sher Muhammad came outside and saw that Altai Hussain armed with rifle .222-bore, Muhammad Iqbal s/o Jamal armed with pistol .30-bore, Imtiaz armed with gun .12-bore, Ishfaq armed with pistol .30-bore alongwith Muhammad Iqbal s/o Bagh Ali and Mureed Hussain were present there on two motorcycles in starting position; Altaf Hussain raised lalkara that today they have come to take vengeance of the murder of their relatives Abid Hussain and Liaqat Hussain and made fire hitting Mushtaq alias Kala on his chest who fell down; Sher Muhammad stepped forward to rescue Mushtaq alias Kala and lshfaq made fire which hit Sher Muhammad in between his right shoulder and neck; then Imtiaz made fire hitting Sher Muhammad on his forehead and lshfaq made fire which also hit Sher Muhammad in between his right shoulder and neck; thereafter, lshfaq made fire hitting Sher Muhammad on his right elbow and fire made by Altaf landed on the right knee of Sher Muhammad; on hearing hue and cry, Allah Bakhsh and other inhabitants of the locality attracted to the place of occurrence and the assailants fled away on their motorcycles while making firing, whereas both Mushtaq alias Kala and Sher Muhammad succumbed to their injuries at the spot.
Motive behind the occurrence, as stated by the complainant, was that two sons of Sher Muhammad (deceased) namely Shabbir Ahmad and Tanvir Ahmad had committed the murder of Abid and Liaqat, relatives of the accused party.
3. It is pertinent to mention here that co-accused Abdul Rasool, Allah Ditta, Manzoor and Altaf were declared proclaimed offenders and perpetual non-bailable warrants of arrest have been issued against them by the learned trial Court.
4. On submission of challan and after completion of the procedural formalities, the accused were formally charge sheeted by the learned trial Court under Sections 302, 148, 149, PPC, to which they pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses to prove the charge against the accused. Dr. Bashir Ahmad (PW-3) provided medical evidence; Muhammad Baskhsh S.I (PW-6), Bashir Ahmad, S.I (PW-8), Mushtaq Ahmad, S.I (PW-10), Muhammad Ramzan, S.I (PW-14), Abdul Majeed, Inspector (PW-15), Ijaz Akram Siyal, S.I (PW-16), Nazar Mehmood, S.I (PW-17), Shaukat Murtaza, D.S.P (PW-20) and Khurshid Aalam Bukhari, DIG (the then S.S.P) (PW-21) conducted investigation of this case, whereas Muhammad Iqbal, complainant (PW-12), and Muhammad Shahbaz (PW-13) had furnished the ocular account and Riaz Hussain (PW-18) and Talib Hussain (PW-19) are witnesses of abetment alleged against the accused Mukhtar Shehzad.
5. On 27.11.2003, Dr. Bashir Ahmad (PW-3) conducted postmortem examination of Sher Muhammad deceased and found the following injuries:--
(i) Multiple lacerated firearm wound of entry on the right side , of the right shoulder blade including right neck in an area of 8 cm x 6 cm, the wounds were in five in number, largest being cm in diameter. A piece of led pellet found on dissecting the wound.
(ii) A lacerated firearm wound at the back of right elbow joint. It was wound of entry covering an area of 10 cm x 7 cm. The exit wound was present on the back of right arm near the axilla. These were multiple lacerated wounds covering an area of 16 cm x 8 cm. On dissection a led pellet was found. Wad was present. Lower end of humerus and elbow joint was broken.
(iii)Two lacerated firearm wounds of entry on the inner side of right knee 3/4 cm in diameter inch.
Two lacerated wounds (exit wound) were present in front of the right knee joint, 1 1/2 cm in diameter each. One led pellet was found in dissecting the wound.
(iv) Five lacerated wounds (exit wound) were on the back of the left shoulder 9 cm x 7 cm, on dissecting two led pellets were found. Left scapula was fractured.
In his opinion, Injury No, 1 was sufficient to cause death in ordinary course of nature; duration between injury and death was immediate and etween death and postmortem 30 to 36 hours.
On the same day, said doctor (PW-3) conducted post-mortem xamination of Mushtaq alias Kala deceased and found the following injuries:--
(i) A firearm lacerated wound (exit,wound) 1 cm x 3/4 cm in front of the left chest 3 cm from the inner end of the clavicle and 2 cm from midline. On dissection the fracture of the fourth left rib near the sternum was present.
(ii) A firearm wound lacerated in nature 3/4 cm x 3/4 cm on the back of the left chest (entry wound) 3 cm below the inferior angle of the left scapula, 10 cm from the midline, margins were inverted, blackening was present.
(iii)A lacerated wound of firearm 3/4 cm x 3/4 cm at the back of the left arm 19 cm above the left elbow. Margins were inverted, blackening present (entry wound). The exit wound was present in front of the left elbow 1 cm x 3/4 cm, 12 cm from elbow on the upper arm.
(iv)A lacerated wound of firearm 1 1/2 cm in circle on the mid of the palmer aspect of the left hand, 3 cm above wrist. This was entry wound. The exit wound was 2 cm x 3/4 cm, on the medial end of the left wrist his opinion, Injury No, 2 was sufficient to cause death in ordinary urse of nature; duration between injury and death was immediate and etween death and postmortem 30 to 36 hours.
6. Learned DDA after tendering in evidence the reports of the hemical Examiner (Ex.PS & Ex.PS/1) and that of the Serologist Ex.PT & Ex.PT/1) has closed the prosecution case.
7. Thereafter, statements of the accused as required under section 342, Cr.P.C. were recorded, in which they refuted all the illillegations levelled against them and professed their innocence. While answering to question (Why this case against you and why the PWs have posed against you?), the appellants have replied as under:-- Ishfaq: "This is a false case. The alleged occurrence is an unseen occurrence. In fact nobody goes to give Eid to his daughters and sisters on the day of Eid. People used to go to their daughters or sisters one or two weeks before the Eid approaches. On the day of Eid, question of visit of the complainant at the place of occurrence does not arise. The complainant has told a lie with regard to his presence and the presence of his brother at the place of occurrence. The case was investigated first and thereafter it was registered by making and thinking out false story. There is no eye-witness at the place of occurrence and the prosecution story is absolutely false. All the witnesses produced by the prosecution are not residing at the place of occurrence and they are residents of far of place rather they were 'chance witnesses and they have told lie. The case remained in investigation more than two years and the accused persons were not arrested by the police as the police itself was not of the view with regard to implication of the accused in the above said occurrence. The accused persons have been involved in this case with the connivance of the complainant party. During the investigation of case, Imtiaz, Altaf, Iqbal son of Bagh Ali and Iqbal son of Jamal were found innocent. Mukhtar Shahzad is the complainant of a murder case which was registered against the complainant party and they were having grudge against the accused and for that reason he has been named, in the FIR. The other,accused persons Muhammad Iqbal s/o Muhammad. Jamal is the eye-witness of the case registered by Mukhtar Shahzad against the complainant party under Section 302, PPC and the other accused persons are the first cousins of Mukhtar Shahzad and in order to pressurize them and to net reconciliation of case against in law of the complainant "Tanveer and Shabbir" who have been sentenced to death and life imprisonment on two counts, and for that reason we have been involved in this case. Even otherwise, senior police officers investigated the case who declared the above said accused to be innocent and also held the ease doubtful. There is a complaint titled as "Sardar Muhammad Ayyaz vs. Muhammad Iqbal etc." under Section 302, PPC filed by Sardar Muhammad Ayyaz - brother of Sher Muhammad (deceased), who had deposed in the complaint that the murder of Sher Muhammad and Mushtaq Ahmad alias Kala was committed by the complainant and his companions. No recovery of pistol 30-bore took place from me and the recovery of pistol has been fabricated by the police by joining hands with the complainant party in order to strengthen the prosecution case."
Appellant Mureed Hussain has offered the same answer as given by the appellant Ishfaq.
Iqbal Hussain: "The case is absolutely false. The real facts have been badly distorted and abundant fabrication has been made to involve us -unjustifiably and unwarrantedly. The case hinges round the statements of two witnesses only namely Muhammad Iqbal PW-12 and Shahbaz PW-13, they both are not residing at or near the place of occurrence and as a matter of fact their abode is at a distance of 3/4 K.M. Their presence at the place in the early hours of morning is therefore,- unnatural, improbable and unbelievable. Besides they are inimical towards us. Our false implication in this case has been managed with no other object but to pressurize us with this dire threat of a fake charge of double murder. This incident is in fact unseen and un-witnessed and it is why that some three versions in respect of this very incident have been carpeted including the one which is advanced by Sardar Muhammad Ayyaz in which the present complainant namely Muhammad Iqbal is the principle culprit because as per that case, he is the assailant who fired a shot from his gun hitting the shoulder-cum-neck region of Sher Muhammad and the best way to wriggle out of that situation was nothing else except to assume the role of complainant and to throw the claim of an eye-witness of the case by extorting the previous incident in which two innocent persons had been killed. Zubair and Imtiaz yet another set of eye-witness of this very incident, talk of and implicate Abdul Rasool, Manzoor, Ismail and Allah Ditta as the real culprit of this case. It goes without saying that the trouble initially originated from the house of Abdul Rasool when his womenfolk altercated with the womenfolk of the family of Sher Muhammad and his sons Shabbir and Tanveer. Aabid and Liaqat were the unfortunate victims as they were closely related to said Abdul Rasool. The fact that in the entire case of the prosecution not even a single person from the public other than Muhammad Iqbal complainant and Shahbaz PW, speaks for itself that the present case as put forth by Muhammad Iqbal complainant is devoid of truth and is the result of hostility. The evidence led at the trial by the prosecution is highly discrepant, contradictory and inconsistent and does not inspire any amount of confidence in any manner. I am innocent."
All the accused/appellants did not opt to appear as their own witness under Section 340(2), Cr.P.C. and have also not produced any defence evidence.
8. After conclusion of the trial, Accused/Respondents No, 1 to 3 in Criminal Appeal No, 74 of 2007 namely Imtiaz Hussain, Iqbal s/o Bagh Ali and Mukhtar Shahzad were acquitted from the charges, whereas appellants Muhammad Ishfaq, Iqbal Hussain and Mureed Hussain have been convicted and sentenced by the learned trial Court, as mentioned earlier.
9. Learned counsel for the appellants in support of Criminal Appeal No, 45 of 2007 contends that the F.I.R. was registered after due deliberations and consultations which is clear from the fact that postmortem on the dead bodies of both the deceased was conducted on the next date i,e, 27.11.2003; that in the post-mortem reports, the doctor intentionally and in connivance with the prosecution did not mention the date and time of death and the time of post-mortem in the relevant columns and left these columns blank to fill the same subsequently as per desire of the prosecution. Further contends that according to the post-mortem report, Sher Muhammad deceased received injuries from a close range as the doctor had recovered pieces of wad from the injury of Sher Muhammad deceased, whereas in the site-plan (Ex.PG), distance between Mushtaq deceased and Ishfaq accused was 41 feet and between the deceased Sher Muhammad and accused Iqbal has been shown as 77 feet; that pieces of wad and pellets after recovery from the dead body. of Sher Muhammad were duly sealed and handed over to the police but the prosecution did not send the same material to the Forensic Science Laboratory for its proper determination; that in fact, report of the Forensic Science Laboratory was received to the prosecution but as the same was in the negative, therefore, the prosecution with mala fide intention has withheld the same. Further contends that both the eyewitnesses were not present at the spot and even otherwise they are chance witnesses and the reason for their being present at the time of occurrence is not plausible at all; that both the witnesses claim themselves to be residents of a place at a distance of about 3/4 kilometers from the place of occurrence and their non-returning to their homes before the Eid does not appeal to reason; that investigation conducted by several investigating Officers reflects that it could not be ascertained as to who has committed this occurrence and it has come on the record that the assailants were different than the persons mentioned in the F.I.R.
10.On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contends that the F.I.R in this case was promptly lodged as such there was no chance of deliberations and consultations; that it was dawn time occurrence and sufficient light was available at the time of occurrence, therefore, there is no question of any misidentification of the assailants in this case; that the ocular account furnished by PW-12 and PW-13 is sufficient to prove the guilt of the accused in this case; that both the eye-witnesses, even after lengthy cross- examination, remained consistent on material aspects of the case; that the witnesses did not improve their statements even after recording of statement of the doctor, which reflects that they are natural and truthful witnesses. -Further contends .that mere enmity between the parties is not a ground to discard the ocular account in the circumstances of the case when it is otherwise confidence inspiring; that PW-13 Muhammad Shahbaz went to give `Eidi' to his two daughters and the complainant Muhammad Iqbal was also present there to celebrate 'Eid' with his father-in-law; that the medical evidence and the evidence of recovery of weapons of offence are only corroborative pieces of evidence; that in this case the substantive evidence is ocular account coupled with the motive and that is sufficient for conviction of the accused/appellants. Learned counsel for the complainant further adds that ipsi dixit of police is not binding on the Court; that filing of a private complaint by step-brother of Sher Muhammad deceased was an attempt to save the skin of the appellant as he was in league with the accused party and that complaint has already been dismissed and thereafter appeal against acquittal was also dismissed in limine by this Court; that any defect in the investigation or dishonest investigation conducted by any Police officer cannot extend any benefit to the accused in the presence of reliable ocular account; that as both the parties are closely related, hence there is no scope of false implication of any of the appellants in this case.
11.As far as Criminal Appeal No, 74 of 2007 is concerned, learned counsel for the appellant/complainant contends that the Accused/Respondents No, 1 & 2 namely Imtiaz Hussain and Iqbal were nominated in the F.I.R with specific roles; that there is sufficient evidence against the Accused/Respondent No, 3 Mukhtar Shahzad in the shape of PW-18 Riaz Hussain and PW-19 Talib Hussain; that all the three Accused/Respondents No, 1 to 3 have fully participated in the occurrence and were vicariously liable for the act of their co-accused, but they have been wrongly acquitted by the learned trial Court.
12.In support of Criminal Revision No, 57 of 2007, learned counsel contends that there was no reason with the learned trial Court to take a lenient view against the Accused/Respondents No, 1 and 2 namely Mureed Hussain and Iqbal Hussain and to award them lesser sentence; that there was no ground of mitigation, hence the Accused/Respondents No, 1 and 2 are liable for awarding 'of the capital punishment.
13.We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
14. The prosecution case only rests upon the ocular account furnished by PW-12 Muhammad Iqbal and PW-13 Muhammad Shahbaz. However, the medical evidence in this case is in direct conflict with the ocular account furnished by both the PWs. It is the prosecution case that the appellants Muhammad Ishfaq and Iqbal Hussain had fired at the deceased Sher Muhammad with pistols .30- bore, but the doctor. (PW-3), during the post-mortem, found the following injuries on the person of Sher Muhammad deceased:-- (i)Multiple lacerated fire-arm wound of entry on the right side of the right shoulder blade including right neck in an area of 8 cm x 6 cm, the wounds were in five in number, largest being 1% cm in diameter. A piece of led pellet found on dissecting the wound.
(ii)A lacerated fire-arm wound at the back of right elbow joint. It was wound of entry covering an area of 10 cm x 7 cm. The exit wound was present on the back of right arm near the axilla. These were multiple lacerated wounds covering an area of 16 cm x 8 cm. On dissection a led pellet was found. Wad was present, Lower end of humerus and elbow joint was broken.
(iii)Two lacerated fire-arm wounds of entry on the inner side of right knee 3/4 cm in diameter inch.
Two lacerated wounds (exit wound) were present in front of the right knee joint, 1% cm in diameter each. One led pellet was found in dissecting the wound.
(iv)Five lacerated wounds (exit wound) were on the back of the left shoulder 9 cm x 7 cm, on dissecting two led pellets were found. Left scapula was fractured.
It is significant to note that from the injuries, pellets and wad were recovered and were sealed into parcel and handed over to the police, but the police did not send the same to the Forensic Science Laboratory for comparison or expert opinion. Medical evidence clearly reflects that the deceased Sher Muhammad received .12-bore fire-arm injuries and the doctor during the cross-examination has categorically stated that injuries on the person of the deceased Sher Muhammad were pellet injuries. Therefore, medical evidence in this case is not in line with the ocular account furnished by the above mentioned eye-witnesses.
15. We have noticed that no overt act or any injury is attributed to Mureed Hussain appellant and the only allegation against him is of his mere presence at the time of occurrence. We have also noted that no weapon of offence, as alleged in the F.I.R., was recovered from the appellant Iqbal Hussain and the pistol allegedly recovered from the appellant Muhammad Ishfaq was sent to the Forensic Science Laboratory alongwith the empties recovered from the place of occurrence, but there is no report on the record in this regard and because of this serious lapse on the part of the prosecution, recovery of weapon from the appellant Muhammad Ishfaq has no significance in this case. We are in agreement with the learned counsel for the appellants that the prosecution with mala fide intention has withheld the most important evidence in this case, i,e, report of Forensic Science Laboratory and we have no option except to draw an adverse inference against the prosecution in view the provisions of Article 129(g) of Qanun-e-Shahadat Order, 1984.
16. As far as motive in this case is concerned, in view of the admitted long standing criminal litigation between the parties, no importance can be given to motive, that in such like cases is a double edged weapon.
17.As the medical evidence and recovery of weapons of offence do not support the prosecution case, there remains only the ocular account furnished by PW-12 and PW-13, but we are not going to believe the same for the following reasons:-- (i)Both the witnesses are inimical towards the appellants as admittedly there is long standing enmity between the parties.
(ii)Both the witnesses are residents of a place three kilometers away from the place of occurrence and both are chance witnesses. The fact that PW-13 Muhammad Shahbaz went to give `Sidi' to his daughters one day prior to the day of occurrence and did not return back to his own house just at the' distance of three kilometers where his other family members are residing, does not appeal to reason; same is the position with the complainant/PW-12 Muhammad Iqbal, who remained fail to explain his presence at the time of occurrence.
(iii)The medical evidence, as discussed earlier, is totally in conflict with the evidence furnished by PW-12 and PW-12.
It is a settled principle of criminal jurisprudence that evidence of a witness who is inimical to the accused and a chance witness, as a matter of caution and for safe administration of justice, cannot be believed unless corroborated by some independent, unimpeachable and trustworthy source. In this case, both the eye-witnesses are interested being closely related, inimical and chance witnesses, therefore, they cannot be believed without strong corroboration. We respectfully refer the case of Muhammad Khalid Khan vs. Abdullah and others (2008 SCM R 158), wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "Testimony of eye-witnesses including the complainant did not inspire confidence, who were chance witnesses and they had not reasonably explained their presence at the spot at the relevant time. Eye-witnesses being admittedly inimical towards the accused, unimpeachable evidence was required to corroborate the ocular, testimony for sustaining conviction, which was lacking in the case."
Moreover, the learned trial Court has not believed the prosecution evidence qua the acquitted accused namely Imtiaz Hussain, lqbal and Mukhtar Shahzad. It is well settled principle that if inimical, interested and chance witnesses are disbelieved qua some of the accused, they cannot be believed against other accused without some strong And independent corroboration available on the record. Here, we respectfully refer the judgment reported as Akhtar Ali and others vs. The State (PLJ 2008 SC 269), wherein the following principle has been highlighted by the Hon'ble Supreme Court of Pakistan: "It is settled law that eyewitnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case (PLJ 1976 SC 29), Sheral alias Sher Muhammad's case (1999 SCM R 697) and Ata Muhammad's case (1995 SCM R 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's. case (PLD 1959 PC 24), Nadia's case (42 Cr.L.J. 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCM R 651) and Muhammad Afsar's case (PLD 1954 FC 171)."
It is duty of the prosecution to prove its case against the accused beyond any shadow of. doubt. In this case, as observed earlier, no implicit reliance can be placed on the ocular account; therefore, we are of the considered view that the prosecution has miserably been failed to prove its case against the appellants beyond any shadow of doubt. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. In this context, we respectfully rely on the case of Muhammad Akram vs. The State (2009 SCM R 230), wherein the Hon'ble Supreme Court has held as under: -"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 thereof 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 i.e entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
Therefore, Criminal Appeal No, 45 of 2007 is allowed, the convictions and sentences recorded by the learned trial Court against the appellants through the impugned judgment dated 31.01.2007 are set aside and they are acquitted of the charges. The appellants are in jail, they shall be released forthwith if not required in any other case. Death sentence of convict Ishfaq is not confirmed and Murder Reference No, 279 of 2007 is answered in the Negative.
18. As far as Criminal Appeal No, 74 of 2007 against acquittal of Accused/Respondents No, 1 to 3 namely Imtiaz Hussain, Iqbal and Mukhtar Shahzad is concerned, the allegation of injury attributed to Respondent No, 1 Imtiaz Hussain on the forehead of the deceased Sher Muhammad with .12-bore gun is not supported by the medical evidence as no injury whatsoever was found on the forehead of Sher Muhammad deceased. Whereas, Respondent No, 2 Iqbal was shown to be present at the scene of occurrence empty handed and Respondent No, 3 Mukhtar Shahzad is not even nominated in the F.LR and was subsequently involved in this case through the supplementary statement of the complainant, that too only to the extent of abetment under Section 109, PPC. We have gone through the judgment passed by the learned trial Court and are in agreement with the learned trial Court as far as the acquittal of the said respondents is concerned. We are of the considered view that the reasons given by the learned trial Court for acquittal of the respondents are quite in accordance with law and based upon settled principles of appreciation of evidence. It has been held by the Honourable Supreme Court of Pakistan in the judgment reported as Haji Amanullah vs. Munir Ahmad and others (2010 SCM R 222) that 'when an accused person is acquitted by the trial Court, he enjoys double presumption of innocence and to dislodge that presumption very strong and convincing reasons are required, but no such reasons are reflected from the record, therefore, the acquittal of Respondents No, 1 to 3 Imtiaz Hussain, Iqbal and Mukhtar Shahzad as ordered by the learned trial Court is maintained 'and Criminal Appeal No, 74 of 2007 stands dismissed.
19. In the light of our above findings regarding acquittal of the appellants Iqbal Hussain and Mureed Hussain, Criminal Revision No, 57 of 2007 for enhancement of their sentence has lost its relevance and is, therefore, dismissed.
20. Needless to add that observations hereinbefore are strictly confined to the case of the appellants and the learned trial Court while deciding the case against the proclaimed offenders in this case shall not be influenced in any manner whatsoever and shall decide the case against them on its own merits strictly in accordance with law.